Town of Atrisco v. Monohan

• Citation: 1952 NMSC 11,240 P.2d 216,56 N.M. 70
• Decision Date: 16 January 1952
• Docket Number: No. 5392,5392
• Parties: TOWN OF ATRISCO v. MONOHAN, County Treasurer of Bernalillo County et al.
• Court: Supreme Court of New Mexico

Page 216

240 P.2d 216

56 N.M. 70

TOWN OF ATRISCO v. MONOHAN, County Treasurer of Bernalillo County et al.

No. 5392.

Supreme Court of New Mexico.

Jan. 16, 1952.

Hannett & Hannett, Albuquerque, for appellant.

Paul Tackett, Dist. Atty., Albuquerque, for defendants-appellees.

Melvin Yost, Santa Fe, for intervenor-appellee.

HARRIS, District Judge.

The appellant, Town of Atrisco, a corporation organized under Ch. LXXXVI of N.M.L.1891, approved February 26, 1891, and continued under Ch. 3, N.M.L.1917 in which the earlier act was repealed by leaving the corporations in existence.

This corporation instituted this suit against the several named county officers to permanently enjoin them from collecting taxes assessed against the common lands of the Atrisco Grant and to enforce the return to the relator of one-half the taxes paid for 1949, and pleaded that a certain judgment in Cause No. 12666 in the District Court of the Second Judicial District for Bernalillo County, entitled 'Board of Trustees of the Town of Atrisco v. Stephen E. Roehl, Assessor of Bernalillo County,' compelling the assessor of Bernalillo County and his successors to refrain from assessing said property for taxes thereafter, was in force and binding on the taxing officers.

The State Tax Commission of the State of New Mexico intervened and pleaded a certain judgment in the District Court of Bernalillo County, entitled 'State of New Mexico ex rel. State Tax Commission v. John A. Flaska', No. 34749, in which the District Court of that county by writ of mandamus compelled the proper officers to enter an assessment of the property involved here on the tax rolls for the year of 1946 and subsequent years.

The contention of the respondents is that the order in Cause No. 34749 is later and supersedes the contrary order in Cause No. 12,666.

The trial court made findings of fact and conclusions in which the contentions of the parties and views of the trial court are manifest. They are as follows:

'Findings of Fact

'1. The plaintiff, Town of Atrisco, is a corporation organized under the laws of the State of New Mexico and holds title to several thousand acres of common lands in the community land grant of the Town of Atrisco, located in Bernalillo County, New Mexico.

'2. The defendant, Edna Monohan, is the duly elected and qualified County Treasurer of Bernalillo County, New Mexico, and the defendant, Daniel O'Bannon, is the duly elected and qualified County Assessor of Bernalillo County, New Mexico; and the State Tax Commission of New Mexico is charged with the duty of exercising general supervision over the administration of the assessment and tax laws of the State of New Mexico and is vested with the power to enforce by mandamus or other appropriate remedy in the Courts, the performance of all statutory, ministerial and executive duties of all state and county officers, the performance of which is necessary and requisite for the collection of taxes.

'3. In 1920 the land involved in this case was a part of the common lands of the town of Atrisco Grant, a confirmed Mexican Pueblo Grant. In that year these lands were assessed for taxes. Thereafter, on December 17, 1920, a suit was filed in the District Court of Bernalillo County by the trustees of the Atrisco Grant, for the purposes stated in the complaint, which was in words and figures as follows:

'No. 12666

Board of Trustees of the Town of Atrisco

v.

Stephen E. Roehl, Assessor of Bernalillo County

In the District Court of the County of Bernalillo, State of New Mexico

'Complaint

'Plaintiff in the above entitled cause complains of the defendant and shows to the court that the said defendant is the assessor of Bernalillo County and that he has assessed and placed upon the tax roll of 1920 the property of said plaintiff although by two decisions of this court it has been held that the said property is not subject to taxation. Plaintiff therefore prays that by an order of this court the said defendant be required to strike out from said tax roll the assessment of the said property, and that his successor or successors in office be restrained and enjoined from making any like assessment in the future.

'The Board of Trustees of the Town of Atrisco

(Seal)

'By (Sgd.) David J. Metzgar, President

'The complaint was endorsed as follows:

'No. 12666

Board of Trustees of Town of Atrisco

v.

Stephen E. Roehls

Assessor Bernalillo Co.

Filed in my office this Dec. 17, 1920

Nestor Montoya, Clerk, By Harry F. Lee (Written in, in ink, and initialed OBM and DM, Jr.

Filed by

George R. Craig, Dist. Atty.

'The following decree was entered:

'No. 12666

Board of Trustees of the Town of Atrisco

v.

Stephen E. Roehl, Assessor of Bernalillo County

In the District Court, County of Bernalillo, State of New Mexico 'Upon reading and filing the complaint of said plaintiff, from which it appears that the defendant has assessed and placed upon the tax roll of 1920, the property of plaintiff which has by two decisions of this court, been held exempt from taxation.

'It is ordered and adjudged by the Court, as prayed in said complaint, that the defendant as such assessor as aforesaid, be, and he hereby is, required to cancel and erase the said assessment upon the tax roll of 1920; and it is further

'Ordered and adjudged that the successor and successors of the said defendant in the said office of assessor be and hereby are restrained and enjoined from again assessing the said property which, as aforesaid, has been held to be exempt from taxation.

'(Sgd.) M. E. Hickey, District Judge.

'The records of Bernalillo County further show in connection with this cause the following docket entries:

'1920

Dec. 17 Filing Petition for Injunction

Dec. 17 Filing Final Order Rec. XI page 466

Dec. 17 Certified Copy to Assessor.

'No other documents are recorded or in the court file. No appeal was taken from this judgment.

'4. On February 23, 1946, in Cause No. 34749, in the District Court of Bernalillo County, the State of New Mexico, upon the relation of the State Tax Commission, filed a petition for a Writ of Mandamus against John A. Flaska, who was then the Assessor of Bernalillo County, asking that he be ordered to appraise and value and list the common lands of the Town of Atrisco for assessment for the year of 1946 and to make an omitted property assessment against said property pursuant to the provisions of Chapter 76-240, N.M.Comp. 1941. Thereafter, the respondent, John A. Flaska, was duly served with an alternative writ of mandamus, in which he was ordered to either assess the property in question or to show cause why he had not done so. The respondent then filed an Answer in the case in which he explained that he and his predessors in office had not assessed the property in question since 1920 because of the restraining order entered in Cause No. 12666. A hearing was held and all the parties, including Hugh B. Woodward and Pearce C. Rodey, who had been appointed by the Court as amicus curiae, appeared and made their argument, and the Court then entered an Order making the Alternative Writ of Mandamus peremptory insofar as it called for the assessment of the realty involved for the year 1946 and subsequent years. Nothing was done about the taxes due for the ten year period prior to 1946. No appeal was taken from this Order.

'5. On December 9, 1949, the plaintiff paid under protest the first half of the 1949 tax assessment against its common lands, in the amount of $560.06.

'6. And on March 2, 1950, the plaintiff filed this suit asking, in effect, that the County Treasurer be permanently enjoined from assessing its common lands and that the $560.06, paid under protest, be ordered returned to the plaintiff.

'Conclusions of Law

'1. This Court has jurisdiction of the parties and subject matter involved in this case.

'2. This Court had jurisdiction of the parties and subject matter involved in Cause No. 34749, which is referred to above, and the Order entered in that case has become final.

'3. The common lands of the plaintiff are not now exempt from taxation and they were not exempt from taxation in 1920 or for any year subsequent to that year.

'4. In 1922, after the Supreme Court of New Mexico had held that such lands were not exempt from taxation, it became obvious that the Restraining Order entered by this Court in 1920 was erroneous.

'5. To grant the relief prayed for in the complaint filed in this case would be contrary to public policy as it would cause inequities among taxpayers and would tend to upset the tax structure of this County.

'6. The Restraining Order entered by this Court in Cause No. 12666 has in effect, been vacated or superseded by its later Order entered in Cause No. 34749.

'7. The complaint should be dismissed with prejudice.

's/Edwin L. Swope, District Judge.'

Upon these findings the trial court entered its judgment, dismissing plaintiff's complaint, from which judgment this appeal was taken.

As the record shows, this is the third case involving the question of the validity of the judgment in Cause No. 12666 mentioned in the findings of fact. The Atrisco Grant consisted of several thousand acres of land which, along with many other Pueblo grants in this state, was erroneously not taxed until after the decisions of this court in Board of Trustees v. Sedillo, Treasurer, 28 N.M. 53, 210 P. 102, and State v. Board of Trustees, 28 N.M. 237, 210 P. 101, decided in 1922 after the entry of the judgment in Cause No. 12666.

It appears from the record that for some fifteen years thereafter this land grant was not taxed and Cause No. 34749 mentioned in the findings of fact was brought to compel the county assessor to enter an assessment of the property on the tax rolls, to which cause of action it does not appear that the Board of Trustees of the land grant was a party. That being the case, the order entered in that case compelling the assessing officers to assess the land in question cannot be pleaded as res judicata in this...