Territory of New Mexico ex rel. Coler v. Board of County Commissioners

OPINION OP THE COURT. PARKER, J. On September 24, A. D. 1900 relatois recovered judgment against appellant in two separate actions upon interest coupons past due and unpaid upon certain outstanding bonds of appellant and in the sum of' $60,926.02 and $74,358.17, respectively. In and by said judgments it was ordered by the court that the appellant levy upon all of the taxable property in said county a special tax sufficient to raise the amount of said judgments, together with interest thereon until paid, and together with costs. On February 7, 1901, the appellant levied on all the taxable property of the county a special tax for the payment of said judgments,-.interest and costs at .the rate of eighty-two mills on the dollar and determines that this rate of levy was necessary to produce the aggregate amount of such judgments, interest and costs. Appellant has paid no portion of said judgments. On August 22, 1905, a petition for a peremptory writ -of mandamus was filed in the court below by appellees to compel appellants to levy a special tax of ten mills upon each dollar of all taxable property in the county to be applied to the payment of each of said judgments. ' The court without hearing awarded a peremptory mandamus as prayed. Thereafter appellant on August 26, 1905, filed in said causes a petition alleging, that at the date of the rendition of said judgments, on September 24, 1900, all of the property subject to taxation within the then county of Santa Fe was subject to the payment of its pro rata of said judgments; that the Thirty-fifth Legislative Assembly of New Mexico segregated a portion -of Santa Fe County and attached samé to the county of Rio Arriba and another portion of said county and attached the same to the county of Tor-ranee; that all of said portions so segregated were still liable and subject to their proportion of said indebtedness; that said peremptory mandamus included only the property within the present boundaries of Santa Fe County and not the portions theretofore segregated; reciting the former mandatory order of the court upon appellant and the compliance therewith; that said former levy was still existing and a lien upon taxable property of the county; that’ said former levy was ample and sufficient to cover the amount of said judgments; that said two ten mills levies were for the payment of the same obligation as the said former eighty-two mills levy and was largely in excess of the amount required to pay the said judgments, interest and costs; that appellant was entitled to be heard as to the amount of levy necessary and whether any levy was necessary; that said former levy of eighty-two mills was sufficient to' pay said judgments. Appellant further alleged that the act of Congress, whereby the bonds, the coupons whereof were the subject of the said actions, were validated, is indefinite, uncertain and incapable of reasonable interpretation and enforcement so as to be applied to any bonds issued by the county of Santa Fe, and does not sufficiently identify any bonds of said ■county intended to be validated. Appellant prayed that the peremptory mandamus in said actions be suspended and that appellant be permitted to show cause and to be heard before said order and writ be made permanent. The petition was denied and appellant brings the cause here for review. 1 It is conceded by appellee that if the former levy of eighty-two mills is sufficient to pay the said judgments, interest and costs, that the present writs were improvidently issued. But it is contended that the record in this case itself shows, notwithstanding the allegations of the appellant, that such is not the fact. It is to be observed that the appellant in its former levy of eighty-two mills on the dollar determined that this was simply sufficient to pay the then amount of the judgments, together with the interest until paid, and costs. No attempt was made at that time to make a levy to pay any greater sum than the amount then due. The resolution of the Board of' County Commissioners shows upon its face this fact. Since that time the judgments have borne interest and at the date of the issuance of the peremptory writs in this cause they had amounted to the sum of $32,874.05, in excess of the amount then due.. The claim, therefore, of' appellant that the eighty-two mills levy was sufficient to pay the amount of the judgments at the date of the issuance of the peremptory writs is unfounded and untrue in fact. 2 The allegation, however, that the two ten mills levies are excessive is based upon a different proposition. The amount of interest accumulated upon the said judgments since the date of the former eighty-two mills levy is the sum of $32,874.05. If the two ten mills levies will produce more money than is required to pay this sum than they ought not to have been commanded by the writs. But-it nowhere appears in the record that any increase-had been made in the assessed valuation of the property of Santa Fe County and, on the other hand, it is alleged by appellant that portions of the county have been cut off by the Legislature since the levy of the eighty-two mills. It is fair- to presume, therefore, in the absence of any showing to the contrary, that the assessed valuation of the county is not in excess of what it was in 1901, when the eighty-two mills levy was-made. If this' is so, a twenty mills levy will produce, if collected in full, $32,996, an excess only of $121.95 over and above the amount required to pay the interest on the judgments accumulated since-the date of their rendition, and up to the date of the' issuance of the peremptory writs in this case. Nearly $10,000.00 in interest has accrued on the said judgments since that time. It, therefore, appears that the levy of the twenty mills eomimanded by the writs in this case is not excessive, the allegations of appellants to the contrary, notwithstanding. It 'is urged that the peremptory writs demand a continuing levy of twenty mills from year to year until the entire judgments, principal, interest and costs ara-paid, and that the court consequently exceeded its-authority. This position we are inclined to think is correct, bnt the judgment below will in this particular be modified so as to avoid the objection. 3 It is urged that the action of the court is erroneous for the reason that the two precincts mentioned as having been segregated from the county of Santa Fe and attached to other counties should have been included in the peremptory writs and tax levy. This contention lias no merit. By Chapter 20 of the Session Laws of 1903 it is provided that any portion of a county, owing a bonded debt which shall be segregated, shall not be released from its obligation to contribute its just proportion to the payment of such debt. Bnt it is provided therein that the assessment, levy and collection of such proportion shall he upon the order of the old county by the officers of the new county and that the money collected shall be paid into the treasury of the old county. The county of Santa Fe, therefore, has it within itsjpower to compel contribution from the two other counties, which nave received a portion of its territory, in proportion to the amount of taxable property received, and this is the method provided by law. 4 It is further urged that the act of Congress validating the bonds in question is so indefinite and uncertain as that the question of their validity is open and that the same may be inquired into in- this proceeding. This proposition is palpably untenable. The process of mandamus is simply in aid of the judgments and is in the nature of an execution for the enforcement thereof. Any attack upon the judgment in this proceeding would he a collateral attack ■ which is not allowable, the only remedy being by direct attack by way of appeal, and this right has been lost by lapse of time. The only error -of the court below is in awarding a continuing mandamus for the payment of the entire amount of- the judgments,, interest and costs, and in this respect the same will he modified so as to sustain the peremptory writs for the levy of the two ten mills levies for each year until the interest accruing on the said judgments since the rendition of the saicf judgments on September 24tli, 1900, is paid, and, as so modified, the judgments of the court below will be affirmed, and it is so ordered. W. H. Pope, A. J., did not join in this decision.