(23 N. M. 606)

the assessment rolls of said county at the

STATE V. SUPERIOR LUMBER & MILL total valuation of $17,140; that in the dis

CO. (No. 2059.)

(Supreme Court of New Mexico. Jan. 14, 1918.)

(Syllabus by the Court.) TAXATION 587-DELINQUENT TAXES-ACTION TO RECOVER-DEFENSE.

Overvaluation of property assessed for taxation purposes is a good defense to an action brought by the state to recover alleged delinquent taxes, where payment of the amount legally due is pleaded, and resort is had to the legal and statutory remedies to avoid the excessive assessment.

Appeal from District Court, Sandoval County; Raynolds, Judge.

Complaint by State of New Mexico against the Superior Lumber & Mill Company. Judg ment for defendant dismissing the complaint, and the State appeals. Affirmed.

Milton J. Helmict, Asst. Atty. Gen., for the State. Carl H. Gilbert and N. B. Field, both of Albuquerque, for appellee.

PARKER, J. This is an appeal by the state of New Mexico from a judgment entered by the district court of Bernalillo county dismissing the complaint of the state.

tribution of the total valuation placed upon all its property was the item "Personal property, valuation $6,100," and "this defendant alleges that in said item there was included, in addition to its other personal property, all of its stock, furniture, and fixtures"; that the assessor transmitted the assessment rolls of said county to the state tax commission, pursuant to statute, upon which all the property of the appellee was listed and valued at $17,140, including therein the item of $6,100 under the head of "Personal Property," which included all its stock, furniture, and fixtures "correctly and adequately described and none omitted"; that on the 19th of July, 1915, two members of the said tax commission, which was less than a quorum thereof, adjourned the regular meeting of said commission to August, 30, 1915, when said commission met pursuant to said adjournment and proceeded with the hearing of appeals, until on the 10th day thereof, when a resolution was passed reciting that the ten-day limit for the July meeting was about to expire, and therefore, much unfinished business remaining to be done, a speThe complaint, filed by the state, alleges cial meeting would be held beginning Septemthat property, real and personal, of the ap- ber 10, 1915; that such special meeting was pellee, the Superior Lumber & Mill Company, held pursuant to such resolution, at which a corporation, located in the county of Ber- meeting the said commission pretended to nalillo, was assessed for taxation for the find and ascertain the actual total value of year 1915 for state, county, and other pur- all taxable property in the counties of the poses and a levy made thereon; that the state, and a pretended order was made deamount of taxes now due and payable claring such total to amount to $18,138,851.15 amount to $600.81, and judgment was prayed in the county of Bernalillo; that said comtherefor. The answer of the appellee ad- mission at said meeting pretended to examine mitted that all of its property, real and per- the assessment rolls of the counties, and did sonal, including its stock, furniture, and fix- make order to the effect that the total valutures, was assessed for taxation purposes ation of property appearing on the rolls of for the year 1915, and a levy made thereon, Bernalillo county amounted to $17,606,522 but denied that $600.81, or any other sum, (which it will be noted was $532,329.15 less was due thereon. By way of new matter than the value of such property as ascertained and as a further defense it was alleged that by the commission); that thereupon said comit made return of all of its property, real mission assumed to make an order increasand personal, for taxation for the year 1915; ing the assessed valuation of property in that it returned its stock, furniture, and fix- divers counties of the state in designated tures by an adequate and correct descrip- percentage over and above the value thereof tion and without omission: that the county as shown from the assessment rolls, Bernalilcommissioners of said county ascertained lo county property being increased in total the true value of classes of property subject value 3.77 per cent.; that thereafter, upon to taxation in said county; that thereafter a statement made by the chief accountant the assessor of said county "listed upon the of the said commission, said order was modtax assessment rolls of said county all of the ified and amended, and in lieu thereof an property of this defendant, real and personal, order was made distributing the money inincluding stock, furniture, and fixtures"; that crease represented by the 3.77 per cent. inthe valuation fixed by the assessor, upon the crease valuation of property in Bernalillo basis of actual value, was $17,140; that the county among designated classes of propcounty commissioners, sitting as a county erty and by placing on the assessment rolls board of equalization, revised, corrected, of said county omitted or incorrectly or inand completed the assessment rolls of said adequately described property, which incounty, and no appeal was taken from their cluded stock, furniture, and fixtures of the action nor from the action of said assessor property of appellee assessed in the sum of in listing the property of the defendant, in- $26,422.05; that the assessor spread such cluding its stock, furniture, and fixtures, on assessment or certification of omitted or

not admit that the commission raised appellee's assessment legally under section 6 of chapter 54, Laws 1915.

incorrectly or inadequately described prop- tice thereof to persons affected thereby; (4) erty on his assessment rolls, which constitut- that appellee was not deprived of due proed an assessment $26,422.05 in excess of that cess of law, nor denied the equal protection made by the assessor in the first instance of the law, nor was the order raising inand approved by the board of county com- dividual assessments arbitrary or made withmissioners, sitting as a county board of out authority; and (5) that the commission equalization; that appellee, in making its possessed authority to certify omitted propreturn of property for taxation for the year erty and assess the same. The appellee con1915, intended to return "and did return" tends that as the demurrer was general it all of its personal property, including its might have been disregarded by the trial stock, furniture, and fixtures under the head court, but that having been considered it must of 'Personal Property" found upon the sched-be overruled if the facts stated, or facts propule as "Merchandise, average stock during erly inferable therefrom, will support the ac1914," and that the return was so understood tion of the court; that the denial of the inand considered by the assessor and county debtedness alleged to be due by appellant board of equalization; that the property joined an issue which was not affected by was properly and accurately described in the demurrer to the new matter alleged in accordance with the form of the schedule the answer; that there is no admission in furnished by the assessor, and none of its appellee's second defense of the valid levyproperty, including stock, furniture, and fixing of an additional assessment against the tures, was omitted therefrom; that the property; and that the second defense does levy on the increased assessment caused by the acts aforesaid amounted to $560.36 in excess of the legal tax. Certain delinquencies on the part of the commission, having to do with matters of procedure and prac-and the position taken by counsel for the tice, are then alleged in the answer. It was parties hereto it will be seen that the parfurther alleged that it had no notice of the ties agree that the most important question action of the commission nor opportunity to in the case concerns the right and power of be heard with reference thereto; that after the state tax commission to raise individual the expiration of the July, 1915, meeting of assessments, or to certify and assess properthe commission it lost all jurisdiction over ty which prima facie appears to have been the matters specified in section 6, c. 54, Laws omitted or incorrectly or inadequately de1915; that by virtue of the raise in the as- scribed on the assessment rolls transmitted sessed valuation of the property of appellee to the commission by the assessor; such acit is required to pay a proportionately great-tion being taken by the commission at an er and higher tax upon its property than alleged "special meeting." The appellant arowners of the same class of property of equal value; that the original assessed valuation of $6,100. upon the personal property of the defendant, plus the increase of $26,442.05, "is greatly in excess of the actual value of said property"; that redress of the injury caused it by the increased assessment was sought under the provisions of section 5475, Code 1915, but denied it by the district attorney, who refused to present its petition to the district court, a copy of the petition

and the endorsement of the determination

of the district attorney being attached to

the answer.

From this extended statement of the facts

gues that the action of the commission was taken under section 8, chapter 54, Laws 1915, whereas appellee argues that the action was taken under sections 6 and 8 of said chapter.

On the tax schedule, under the head of "Personal Property," appears an item designated as "Merchandise, average stock for 1914." Appellee asserts that its stock, furniture, and fixtures were returned under the mission, upon an investigation and inspeclatter head. Evidently the state tax comtion of the assessment rolls of Bernalillo county, concluded that the furniture and fixtures of the appellee had not been returned for taxation. Thereupon it made the order to which reference has heretofore been made.

To this answer the district attorney filed a general demurrer, which simply stated that The view we take of this case makes it the answer did not allege facts sufficient to unnecessary to determine many of the quesconstitute a defense. It is upon these plead- tions presented by the parties hereto. The ings that the question raised here must be de-issue tendered by the complaint was that aptermined.

pellee was indebted to the state in a certain The following propositions are raised and sum on account of delinquent taxes levied argued by the state: (1) The state tax com- upon an assessment of its property. This mission may make orders without having issue was met by a denial thereof on the part taken sworn evidence and on any information of appellee, and a defense by way of new satisfactory to it; (2) the commission had matter alleging facts tending to show that power to make the order referred to in the appellee had paid all taxes legally assessed answer at the alleged special meeting held against it and disclosing that illegal acts on in September; (3) the commission may certi- the part of the said commission resulted in fy omitted, incorrectly described, or inade-increasing the amount of taxes chargeable quately described property without giving no- against it.

of the tax, might seek redress in the courts; the court saying:

"The taxpayer who has been wronged by overvaluation of his property and who has had no who has applied to the district attorney withnotice of the action which results in injury, and out avail, certainly has the right to relief in the courts. If the taxpayer presents to the district attorney substantial evidence of the inrefuses to act, his arbitrary refusal to submit justice complained of, and the district attorney the matter to the court would amount to legal fraud. This would bring the taxpayer clearly within the right to equitable relief against the excessive portion of the tax.

* *

We shall assume, for the purposes of this case, that the procedure adopted by said com mission was according to law, and that its action was in all respects legal. Notwithstanding that assumption, however, the judgment of the trial court must be affirmed. In the answer by way of new matter it is alleged that the original assessment laid against its property included its stock, furniture, and fixtures, and was assessed at $6,100, and that such valuation plus the additional assessment of $26,422.05 thereon "is greatly in excess of the actual value of said property." The general demurrer filed by The appellee, in the case at bar, was not the state, through the district attorney, of required to resort to an injunction suit to course admitted the truth of this allegation. obtain this relief. The defense was responTherefore, independent of all questions con- sive to the issue tendered in the complaint by cerning the legality of the action of the com- the state, and appellee's right to relief was mission in proceeding to certify the proper- identical with the right if asserted in an ty of appellee as omitted from the rolls or equitable proceeding or suit. The demurrer incorrectly or inadequately described, the having admitted that the property of appelpleadings presented a clear case of overval- lee as finally assessed by the taxing officials uation of the property of appellee. Facts was overvalued, and as such defense was were also alleged showing that appellee ap- clearly responsible to the issue tendered by plied to the district attorney, under section the complaint of the state, the trial court did 5475, Code 1915, for relief from said assess- not err in sustaining the demurrer. ment; one of the grounds alleged therefor being that "said original assessment of $6,100, plus the applied rate of $26,422.05, is more than the said property is actually worth." The district attorney refused to present the appellee's petition for the correction of such assessment to the district court, declaring that the error was not such as is contemplated by section 5475, Code 1915. That this answer by way of new matter was responsive to the issue tendered by the state is unquestioned. The question, therefore, is not different from the one presented in those cases brought to enjoin action on the part of tax officials on the ground that the property of the plaintiff is overvalued, except that in one case the defense or right of action is asserted in a suit in equity and in the other in an action at law. In South Springs Ranch & Cattle Co. v. State Board of Equalization, 18 N. M. 531, 569, 139 Pac. 159, 173, we said, speaking to what is now section 5475, Code 1915:

"It is to be noticed that the word 'injustice' to the taxpayer is employed in this section. The word 'injustice' would seem to be the broadest term which the Legislature could have employed in this connection. Any case of overvaluation of the property by the taxpayer would seem clearly to be an injustice within the meaning of the act. It is to be further noticed that an injustice which is discovered after the tax rolls come into the hands of the collector is to be relieved against, under the terms of the section.

* *

The judgment of the trial court will therefore be affirmed, and it is so ordered.

HANNA, C. J., and ROBERTS, J., concur.

(23 N. M. 599)

STATE ex rel. WOODS et al. v. MONTOYA,
County Treasurer. (No. 2036.)
(Supreme Court of New Mexico. Jan. 14, 1918.)

(Syllabus by the Court.)
APPEAL AND ERROR 790(1)—MOOT QUES-

TION-DISMISSAL.

An appeal involving a question, which, by reason of the changed status of the parties, has become a moot question, will be dismissed.

Appeal from District Court, Socorro County; Mechem, Judge.

Mandamus cases by the State of New Mexico, on the relation of J. B. Woods and the Board of County Commissioners of Socorro County, against Max M. Montoya, Treasurer of Socorro County, N. M. Dismissed.

William J. Eaton, of Socorro, for appellants. Nicholas & Nicholas, of Socorro, for appellee.

PARKER, J. Two cases are involved in this proceeding. The first is one involving the right of the county road board of Socorro county to have certain moneys derived from the federal government as proceeds from the national forest reserve placed in the county road fund of the county, in which the reWe then proceeded to state that the action lator obtained a peremptory mandamus. The of the state board of equalization was not second was a case in mandamus against the final, and that the action of the district at- county treasurer of Socorro county to comtorney on the petition presented to him by pel the payment of a warrant drawn on him the taxpayer is likewise not final, but that by the county commissioners in a small sum the aggrieved person, after resorting to all for money due the relator for road work. the means provided by law for the correction The treasurer defended on two or

more

grounds, and the mandamus was denied by ters from said creek had been approved by the court.

Since the judgment in these cases, which were really contests between the county road board and the county commissioners for the control of these funds, chapter 38, Laws 1917, has been enacted, which has abolished the county road boards, and has intrusted all of the road and bridge business of the counties to the county commissioners. It has become, therefore, a moot question as to the respective rights and powers of these two boards at the time these controversies arose, the county road board having ceased to exist.

For this reason, concurred in by counsel on both sides, the appeal will be dismissed; and it is so ordered.

the state engineer; and that it is necessary to condemn certain described land of appellee for said ditch for the purpose of carrying water to said lands of appellants and applying said water to the irrigation of crops thereon. It was also alleged that it had become necessary for the maintenance of appellant's said ditch and irrigation plant and the use thereof to acquire said real estate, together with the right to enter upon said lands "through gates, to be constructed and maintained by plaintiffs in the fences of defendant inclosing said land and real estate." It was also alleged that the parties had been unable to agree on the amount of compensation to be paid the appellee for such rights, and that appellee had obstructed the said

HANNA, C. J., and ROBERTS, J., concur. ditch of appellants to their great injury and

(23 N. M. 613)

YOUNG et al. v. DUGGER. (No. 2167.)

damage.

Appellee filed a motion to make the petition more definite and certain. One of the grounds thereof was that the petition failed

(Supreme Court of New Mexico. Jan. 15, 1918.) to state facts showing that the use to be

(Syllabus by the Court.)

EMINENT DOMAIN 29-CONDEMNATION BY
PRIVATE PERSONS-"PUBLIC USE"-IRRIGA-
TION PURPOSES.

The use of water for the irrigation of lands, by private persons, constitutes a "public " and in aid thereof the lands of another may be condemned for ditch purposes.

use,

[Ed. Note.-For other definitions, see Words

and Phrases, First and Second Series, Public Use.]

Appeal from District Court, Lincoln County; Medler, Judge.

made of the lands sought to be condemned was of a public nature rather than of a private nature. The court sustained the motion on the theory that the use was private and not public. Appellants refused to plead further, and judgment dismissing the complaint was entered.

the land of another.

whether the right of condemnation exists in The sole question presented in this case is favor of private persons for the purpose of conveying water for irrigation purposes over Condemnation proceeding by Hal Young whether such right exists in favor of one ocThe question as to and another against Waverly G. Dugger.cupying land under the desert land laws of From a judgment dismissing the petition, the United States and against one occupying plaintiffs appeal. Reversed, with instruction to vacate the judgment.

George B. Barber, of Carrizozo, for appellants. H. B. Hamilton, of Carrizozo, for appellee.

PARKER, J. This is an appeal from the district court of Lincoln county by Hal Young and James N. Baskin from a judgment of the court dismissing their petition for condemnation of certain lands of the appellee, Waverly G. Dugger.

Ap

land under the homestead laws of the United States was not determined by the trial court, and is immaterial here. The case of City of Albuquerque v. Garcia et al., 17 N. M. 448, 130 Pac. 118, holding that the use of water for irrigation purposes constitutes a public use, controls the decision in this case. pellee, however, argues that the petition was defective because it failed to allege that there was surplus water in the Nogal creek, and cites Albuquerque Land & Irrigation Co. v. Gutierrez, 10 N. M. 177, 61 Pac. 357, as The petition alleged facts showing that the appellants were desert entrymen under the authority for the proposition that such allelaws of the United States of certain land, that the right to condemn land by irrigation gation is essential. In that case it was held and that the appellee was in possession of another tract of land under the homestead companies was dependent upon the right of laws of the United States; that appellants the person, seeking to condemn the land, to were the owners of an irrigation ditch head- the use of water, which in turn was depending and tapping the waters of Nogal creek, ent upon whether there was any surplus waand running thence in a northwesterly direc- ter subject to appropriation. The doctrine of tion about 21⁄2 miles to a reservoir situate that case has no application here, for the on the lands of appellants; that said ditch right to the use of the water by appellants is and reservoir, together with flumes and lat- clear from the allegation in the petition that erals, constituted an irrigation plant used their application to appropriate water from to irrigate lands of the appellants; that the the Nogal creek was granted by the state enapplication of appellants to appropriate wa-gineer, the officer in control of such matters.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The right to divert the waters of said creek [ 921, on account of the insufficiency of the to the extent granted by the state engineer evidence to support the verdict, but that is vested in the appellants, and the court erred in sustaining the motion in this respect and In entering judgment of dismissal for the appellee.