Town of Albuquerque v. Zeiger
| Decision Date | 24 July 1891 |
| Parties | TOWN OF ALBUQUERQUE v. ZEIGER. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
1. Towns incorporated and organized in accordance with the provisions of title 28, c. 2, Comp. Laws 1884, are not empowered to levy a special assessment upon lots or blocks situate within the corporate limits for the purpose of raising money to pay the expenses incurred by the corporate authorities in curbing and improving public streets in front of such lots or blocks, unless the same be done in accordance with the provisions of section 1685, Comp. Laws 1884.
2. If these municipalities proceed to enforce the payment of such assessments by sale of the property fronting upon streets so curbed or improved, equity will grant relief restraining such sale, if necessary, to prevent a cloud upon the owner's title.
Error to district court, Bernalillo county; H. W. BRINKER, Judge.
W. H Whiteman and N. C. Collier, for plaintiff in error.
N. B Field, for defendant in error.
Charles Zeiger, defendant in error, owns in the town of Albuquerque a municipal corporation organized under the general laws of this territory, a part of lot 12, in block 18, of the New Mexico Town Company's addition to Albuquerque. This lot abuts upon Railroad avenue. In 1886 the town trustees passed a resolution providing for the improvement of this avenue by the construction of a stone curbing from the west side of First street to the east side of Fourth street, assessing $101.50 as a special tax upon the part of lot 12 owned by the defendant in error, as its proportionate share of the cost of such construction. This assessment, together with one for the general tax of that year, was placed in the hands of the sheriff, ex officio collector of taxes, to enforce payment thereof by sale of the lot in question or otherwise. Thereupon Zeiger tendered to the sheriff the full amount of the tax assessed and due for general municipal purposes, but refused to pay any part of the amount specially assessed for the improvement of the street. The sheriff, as directed by the town, refused to accept the sum tendered, unless the special assessment was also paid, and proceeded to enforce the collection of the amount claimed by advertising for sale Zeiger's part of the lot before mentioned. To prevent this, Zeiger, on or about February 24, 1888, filed his bill in equity against the plaintiff in error and the sheriff, setting out in detail the several acts of the town in making the special assessment to pay the cost of constructing the stone curbing in front of his lot, alleging that the same was wholly unauthorized; that he had tendered to the sheriff $191.94, the full amount of his taxes claimed for general purposes, before the same became delinquent, and that the latter refused to accept the same in default of the sum assessed for the improvements made upon Railroad avenue. He then alleges that he brings into court said sum so offered to the sheriff, and tenders the same to plaintiff in error in discharge of all lawful taxes assessed against him. He further alleges that the defendant sheriff, as ex officio collector, is advertising his property for sale to pay the said taxes, and the said unlawful special assessment, and that the sheriff has threatened to sell and will sell said property unless restrained from so doing by order of the court; that, in case of such sale, a cloud will be cast upon his title to the property sold; "that he will be compelled to redeem the same at great expense, and will be unable to recover back the amount so wrongfull assessed against him, and will be otherwise irreparably damaged," etc. Then follows prayer for general relief and the issuance of a writ of injunction. The defendants, town and sheriff, filed a general demurrer to the bill, which was overruled, the injunction prayed for issued, and defendants allowed to plead over. Refusing to do this, final decree was entered in favor of plaintiff, making the injunction perpetual. An appeal from such judgment was afterwards taken, but the same was not prosecuted. The case is here on writ of error sued out by the defendant town.
We will remark, with regard to the points raised by the defendant as to the right of plaintiff in error to concurrent remedies by appeal and writ of error, as well as to failure of the defendant sheriff to join in suing out such writ, that, they having already been decided against the defendant in error the only questions presented for determination now, are: (1) The legality of the special assessment; (2) the right of defendant in error to the relief sought in his bill. The provisions of law upon which plaintiff in error relies as authorizing its action in the premises are found in the following sections and subsections of title 28, c. 2, of the Compiled Laws of 1884: ...
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