The prevailing opinion holds: (1) That the acceleration clause in the ordinance automatically and without notice matures the entire indebtedness upon default in the payment of a paving installment; and (2) that there is in New Mexico a statute of limitations applicable to a suit to foreclose the lien of the paving assessment here sued upon. In my opinion, the majority reach an erroneous conclusion as to both questions decided. These conclusions will be discussed in the order mentioned.
The construction given the acceleration clause of the ordinance is based upon the earlier decision of this court in Buss v. Kemp Lumber Company, 23 N.M. 567, 170 P. 54, L.R.A. 1918C, 1015. The cases are distinguishable. In the Buss case we determined the effect of an acceleration clause in a mortgage note providing that in case of default in the payment of any installment of interest, "then the whole principal sum shall become due and collectable". We there were seeking to arrive at the true intention of the parties to a private contract voluntarily agreed upon. Resting our conclusion on the fundamental consideration that the parties themselves made the contract, we held that no election was necessary by the holder of the note; that default automatically matured the entire indebtedness; and that the statute of limitations began to run on the cause of action upon the mere occurrence of the default. *Page 464
The situation is different here. We are dealing with the language of an ordinance in the drafting of which only one party, the city, had any part. Furthermore, the proper construction of the acceleration clause contained in the note in the Buss case was uninfluenced by other language of the instrument, whereas here we have the penalty provision and the reinstatement clause both in the same section of the ordinance as the acceleration clause, each of which merits some consideration.
In the later case of Beebe v. Fouse, 27 N.M. 194, 199 P. 364,366, decided by this court, the matter was presented under a differently worded acceleration clause. There the language appeared in a conditional sales contract merely providing that after default, the first party "may enter upon the premises" and retake possession of certain property. We observed a distinction between that case and Buss v. Kemp Lumber Company, supra. We said: "Under the contract in the case at bar the appellee hadthe right, if he so elected, to enter upon the premises where the property was found and to retake possession thereof, without previous demand or notice. But this right was in abeyance until appellee elected to exercise it. Consequently, the statute did not begin to run until such election was made." (Italics mine.)
And so it is, or should be, as to the acceleration clause here involved. Our decision in the Buss case is against the weight of authority, even under language similar to that there construed. See Keene Five-Cent Savings Bank v. Reid, 8 Cir., 123 F. 221,224, certiorari denied, 191 U.S. 567, 24 S. Ct. 841, 48 L. Ed. 305, where the court said: "The effect of such clauses as the one in question has frequently been a subject for judicial consideration, and, while the decisions are not entirely harmonious, yet the decided weight of reason and authority is in favor of the view that such provisions are not self-operative; that they are for the benefit of the creditor, and intended to give him, on grounds of convenience, the right to treat the entire debt as matured, if an installment of interest is not paid as and when it should be, or if the taxes on the mortgaged premises are not paid pursuant to agreement. The great majority of the cases treat such provisions, when contained in mortgages, as designed to further constrain and stimulate the debtor to meet his engagements promptly, and to arm the creditor with a right in the nature of a right to declare a forfeiture or to exact a penalty, which he may or may not exercise, and as a right which the courts will never regard as having been exercised by the creditor, or as having any effect upon the period of maturity specified in a note or bond, without some affirmative action on his part, such as a notification to the debtor, by a suit or otherwise, that on account of the default he elects to treat the entire indebtedness as due."
If the matter were one of first impression, we might do well to pause and ponder before following the minority doctrine. *Page 465 Still, it calls for no narrowing of the holding in that case to sustain appellee's contention on this point in the case at bar. The appellee merely argues that there should be no extension of the doctrine of the Buss case and, with this contention, I fully agree.
Two results follow default by virtue of the acceleration clause: First, the entire debt is matured; and, second, a penalty in the rate of interest applicable is started. Can it be said that results so obvious were not the purpose and object of the clause? I think not. Both results are penal in their nature. And both must have been intended. The fact that this court in City of Roswell v. Levers, 38 N.M. 419, 34 P.2d 865, held municipalities without statutory authority to impose penalty interest at the rate of 1% per month, has no bearing on the question of the intent with which the penalty was imposed. The invalidity of such action had not then been declared, and, as declared, was simply that the ordinance imposed a penalty in excess of 8% per annum, the maximum authorized by the controlling statute. Clearly, the ordinance discloses an intent to exact a penalty. It is the intent with which the city imposed it that we now are concerned.
Then, we have the reinstatement or restoration clause to consider. This clause is found in section 3 of each ordinance, along with the penalty provision. It follows the latter and reads: "* * * but at any time prior to the day of the sale, the owner may pay the amount of all unpaid installments, with interest at one per centum per month, or fraction of a month, on the unpaid installments, and all penalties accrued, and shall thereupon be restored to the right thereafter to pay in installments in the same manner as if default had not been suffered."
The presence of this clause very well may be considered as having an important bearing on the question of whether an option is to be implied in connection with the acceleration clause because of the consequences to follow where the property owner avails himself of the reinstatement clause. To illustrate, let us assume that the entire indebtedness automatically matures by reason of the first default. The city or town under the authority of section 5 of the ordinance advertises the property for sale "at the same time and in the same manner as the sale of property in the Village for delinquent general taxes;" or (if same be permissible, in view of the fact that each ordinance expressly authorizes foreclosure and sale only in the manner first indicated), recovers judgment in foreclosure for the full amount of principal and interest plus penalties and advertises the property for sale. At any time before the appointed day of sale, the delinquent property owner may pay off the defaulted installments, interest, penalties, etc., and thereupon become "restored to the right thereafter to pay in installments in the same manner as if default had not been suffered". *Page 466
It will be noted that the reinstatement clause does not impose as a condition to its exercise that the property owner shall pay attorney's fees which may have been incurred by the city in connection with a sale about to be conducted at the same time property is sold in the city for general taxes, or by a bondholder in a judicial foreclosure as mortgages are foreclosed (the latter authorized by L. 1923, c. 133, but omitted as an express means of foreclosure provided by the ordinance). Either the city or a bondholder might very well pause and consider whether it or he would wish to treat the entire indebtedness due for purposes of sale, or of suit and sale, when the defaulting owner could defeat the whole procedure and reclaim his right to pay in installments by paying merely the installments in default plus accrued interest, penalties and costs, leaving the lienholder liable for any attorney's fees incurred. At least, the lienholder might very much prefer to elect in each instance whether to risk this hazard rather than to have same automatically forced upon him. Furthermore, if, as the majority hold (and erroneously, I think), there is a statute of limitations applicable to foreclosure of paving assessment liens, the statute automatically begins to run on the entire indebtedness — a result which the city or bondholder very earnestly might wish to avoid and even deem themselves safe from, not having elected to avail themselves of the implied option to declare the entire amount due.
In view of the considerations mentioned, I think we should not extend the doctrine of Buss v. Kemp Lumber Co. In the case at bar, since the intent and a manifest object of the acceleration clause is to start a penalty, an option should be implied. The clause is for the lienholder's benefit. It is harsh and in the nature of a forfeiture. Equity abhors both penalties and forfeitures. The parties are in a court of equity. The one for whose benefit the clause was incorporated in the ordinance is here denying that he claims the benefit of accelerated maturity. We should not force same upon him by the construction given the language employed. See Annotation in 113 A.L.R. 1168; Town of Cheraw v. Turnage, 184 S.C. 76, 191 S.E. 831.
The majority hold the four year statute of limitations (1929 Comp., § 83-104) is applicable to the foreclosure of the lien of paving assessments. In my opinion they are wrong in this conclusion. It may avoid some confusion at the outset to state that I make no contention these paving assessments are "taxes", in the generally understood sense. Ordinarily, when we speak of taxes, we think of general taxes levied upon an ad valorem basis. Paving assessments are not that kind of taxes. No contention is made that they are. Neither are excise taxes of that kind. The state may be obligated to pay debentures issued to anticipate the proceeds of a special fund to arise from imposition of an excise tax. Thus a debt is created but it is not necessarily a "debt" in the constitutional sense, *Page 467 requiring an approving vote of the electorate since it is not to be repaid from ad valorem taxation. State v. Connelly, 39 N.M. 312, 46 P.2d 1097, 1106, 100 A.L.R. 878. But it is a debt nevertheless.
The sales tax, the use tax, the severance tax, the succession tax and other forms of excise taxation are not subject to challenge as "taxes" levied by governmental authority and for a public purpose. And, yet, they are not "taxes" in the ordinary sense of the word. In State v. Connelly, supra, we said: "The original article 8 of the Constitution on `Taxation and Revenue' has been replaced. The original section 1 provided: `The rates of taxation shall be equal and uniform upon all subjects of taxation.' This court, without hesitation, held this provision applicable `only to taxes, in the proper sense of the word, levied with the object of raising revenue for general purposes, and not to such as are an extraordinary and exceptional kind,' and that it was `to be restricted to taxes on property, as distinguished from such as are levied on occupations, business, or franchises, and as distinguished also from exactions imposed in the exercise of the police power rather than that of taxation.' State v. Ingalls, 18 N.M. 211, 135 P. 1177, 1180."
Thus we see that there are "debts" and "constitutional debts" and there are "taxes" (general taxes) and "special taxes". An excise tax is truly a tax levied by the state or some political subdivision thereof in a sovereign capacity. Nevertheless, it was held not to be a tax in the constitutional sense within Const., Art. 8, § 1, as originally adopted, requiring that rates of taxation should be equal and uniform upon all subjects of taxation. State v. Ingalls, 18 N.M. 211, 135 P. 1177. But the excise is still a tax.
And so it is with paving assessments. They are not taxes in the ordinary sense at all but they are taxes in the sense that the sovereign authority to impose them resides in the state's taxing power. This fact has been affirmed by this court on more than one occasion. City of Roswell v. Bateman, 20 N.M. 77, 146 P. 950, L.R.A. 1917B, 365, Ann.Cas. 1918B, 426; City of Albuquerque v. City Electric Company, 32 N.M. 401, 258 P. 574; City of Roswell v. Levers, 38 N.M. 419, 34 P.2d 865; State ex rel. Ackerman v. City of Carlsbad, 39 N.M. 352, 47 P.2d 865; State ex rel. Lynch v. District Court, 41 N.M. 658, 73 P.2d 333, 113 A.L.R. 746; Waltom v. City of Portales, 42 N.M. 433, 81 P.2d 58.
In City of Albuquerque v. City Electric Co., supra, the question was one of priority between a prior recorded mortgage to secure bonds of approximately two hundred thousand dollars and the lien of paving assessments. This court sustained the priority of the paving lien and, among other things, said [32 N.M. 401,258 P. 575]:
"In the first place, the power to levy a special or local assessment is essentially a branch of the taxing power. 1 Page *Page 468 Jones, Taxation by Assessment, § 8; 2 Cooley, Taxation (3rd Ed.) p. 1153 et seq. * * *
"The fact that the law creating the priority of the tax was enacted after the mortgage was executed seems to be immaterial. The owner of the property and the mortgage alike are at all times subject to the taxing power of the state. Wabash East R. Co. v. East Lake, etc., Commissioners, 134 Ill. 384, 25 N.E. 781, 10 L.R.A. 285; Seattle v. Hill, 14 Wash. 487, 45 P. 17, 35 L.R.A. 372; Provident Institution, etc. v. Jersey City, 113 U.S. 506,5 S. Ct. 612, 28 L. Ed. 1102."
The prevailing opinion, while conceding that the imposition of the tax or assessment is an exercise of the state's sovereign taxing power, withdraws from the proceeding any shade of sovereignty after levy of the assessment and makes of the transaction one by the municipality in its purely corporate, private or proprietory capacity, subject only to the legal incidents consequent on such a status.
As author of the opinion in State ex rel. Lynch v. District Court, supra, where we were asked to prohibit the district court of McKinley County from appointing a receiver to collect delinquent assessments, I recall that vigorous argument to this very effect was presented by able counsel for the respondent judge and his court. We rejected it and made permanent an alternative writ restraining the respondents from appointing a receiver to collect the delinquent assessments. And upon what ground? Upon the ground that the district court was withoutjurisdiction to appoint a receiver to collect "taxes" — special taxes or assessments, to be sure, and not general taxes as to which, of course, the want of jurisdiction would be just as obvious — but "taxes", nevertheless, and of the very kind here involved, viz., paving assessments. True, we mentioned the fact that the controlling ordinance and statute having provided a complete scheme for initiating the paving program and for raising the money to defray the cost thereof, the mode of enforcement prescribed afforded the only remedy. But it can hardly be said that an erroneous conclusion by the trial court in this respect would be outside its jurisdiction and thus have afforded the basis for prohibition. But, even so, the decision then would rest upon two grounds instead of one only and become stare decisis as to both.
In the Lynch case we reviewed certain federal court decisions involving the power of a court of equity to appoint a receiver to collect public improvement assessments, namely, Street Grading District No. 60 of Little Rock v. Hagadorn, 8 Cir., 186 F. 451, certiorari denied, 223 U.S. 721, 32 S. Ct. 524, 56 L. Ed. 630, and Road Improvement District No. 7 v. Guardian Savings Trust Company, 8 Cir., 298 F. 272, reversed on certiorari, 267 U.S. 1,45 S. Ct. 201, 69 L. Ed. 487. In the Hagadorn case, the court rested its decision primarily on two former decisions of the United States Supreme Court, Rees v. City of Watertown, 19 Wall. *Page 469 107, 22 L. Ed. 72, and Thompson v. Allen County, 115 U.S. 550,6 S. Ct. 140, 29 L. Ed. 472. Both involved equity's power to appoint an officer — the court's marshall in the Rees case and a receiver in the Thompson case — to levy and collect ad valorem taxes. The court held that the United States District Court was without jurisdiction to appoint a receiver in equity to collect delinquent street improvement assessments. Equity is without power, said the court, to collect taxes and no distinction in this behalf was noted between general (ad valorem) taxes and special street improvement assessments as they happened to be in the Hagadorn case. That our decision in the Lynch case rests fundamentally on this same concept is made obvious by the following excerpts from the opinion; we said [41 N.M. 658,73 P.2d 339, 113 A.L.R. 746]:
"Equity is as much wanting in jurisdiction to appoint a receiver to perform the duties of the governing body in collecting the tax as to assess the same. * * *
"While it is true under the statute that upon failure or refusal of the governing body to sell property for default in the payment of an assessment the holder of any bond may sue to enforce the lien, this does not detract from the governmentalnature of the duty performed by the governing body when it movesto collect. It is a receiver to perform the duty of the town as trustee, not to exercise the privilege conferred by the statute on a bondholder, that is sought by plaintiff in the suit below." (Italics mine.)
The prevailing opinion erroneously appraises the Lynch case. The language: "Nor is there disagreement on the proposition that in initiating the paving program, appraising benefits, and levying the assessments against abutting property, the town of Gallup was acting in a governmental capacity." is quoted as indicating our acceptance, without deciding, what counsel for both parties agreed upon. But we followed immediately by citing several of our own decisions abundantly supporting the correctness of what the parties were said to have agreed upon. This concession of counsel goes no farther than the concession of the majority in the prevailing opinion. They, too, agree that the power to levy these special assessments is essentially a branch of the state's sovereign taxing power. What they do not agree and is not embraced in the concession of the parties quoted, supra, is that in collecting the "tax", or "assessment" if one prefers, the municipality still acts in a governmental capacity. Indeed, that it does not so act was the chief contention of counsel for the respondents in the Lynch case. Following the Hagadorn decision, and others cited in the opinion in the Lynch case, we held that it does so act.
If the court upon further consideration wishes to overrule the Lynch case, well and good. I entertain no pride of opinion in its authorship, although far from persuaded *Page 470 that it is wrong. But let not what it decides be misunderstood or misconceived.
In another case, following the Lynch case, Waltom v. City of Portales, 42 N.M. 433, 81 P.2d 58, 59, we again recognized that the city or town is acting in a governmental capacity in carrying out these street improvements. We said: "Our cities and towns have ever since 1884 been clothed with the power to construct sewers and improve streets. Streets in municipalities were declared by the Legislature to be public property. Sometimes the city streets are used as a part of state highways and the cities and towns required to construct and maintain such portions of the public highway as run through such municipalities whether on their streets or otherwise. `El Camino Real' is a familiar illustration of this. These municipal duties may be dischargedby means of revenues derived from general taxes or out of proceeds derived from the levy of special assessments against property adjacent to the improvements. To the extent of funds derived from special assessments the burden of general taxes is proportionately decreased. Such special assessments are quasitaxes and are laid to enable the discharge of some of thefunctions of government. The power to impose them is related tothe taxing power." (Italics mine.)
It will be observed we stated that "these municipal duties [of improving streets] may be discharged by means of revenues derived from general taxes * * *". See 1929 Comp., § 90-1222. See, also, § 90-1216, as amended by L. 1939, c. 88, § 2. By what authority may the municipality dedicate the proceeds of general taxation to pay all or a portion of the cost of paving its streets, except in the performance of a governmental function? And, if half the cost of a particular paving program is paid from the proceeds of general taxation and half from special assessments against abutting property, is the city's act in levying, as well as collecting, the special benefit assessments any less governmental in character than its act of levying and collecting by general taxation the portion of the cost to be borne by the city?
The prevailing opinion says that: "* * * although in levying these paving assessments the municipality was acting in a governmental capacity, nevertheless such assessments are not levied for governmental purposes, and are, therefore, not taxes". If, in levying and collecting general taxes to pave streets the city raises money for "governmental purposes", the purpose being exactly the same, why is it any the less so when the city raises it by enforced levies against the property in the form of special benefit assessments? It is an involuntary contribution by the property owner measured by an enforced lien on his property to pave the street it abuts. This meets my definition of a tax in the form of a special imposition. It also met this court's definition of a tax as expressed by Mr. Justice Roberts in Eccles, Artesian Well Supervisor v. Will, 23 N.M. 623,170 P. 748, 749, L.R.A. 1918C, 1022, where the court said: "A special assessment for benefits *Page 471 is a form of tax, and is referable to the power of taxation (Page Jones, Taxation by Assessment, § 5), while an assessment (so called for want of a better name), levied to reimburse the public corporation for the cost of performing some act which the owner of the realty assessed is bound by law to perform, but which he omits or refuses to do, does not rest upon any theory of benefits conferred, and is not necessarily a form of taxation. It constitutes an exercise by the Legislature of the police power as distinct from the taxing power. Page Jones, Taxation by Assessment, §§ 9 and 89." (Italics mine.)
It seems agreed that the paving liens securing the bonds here sued upon were filed under the authority of L. 1923, c. 133, Section 4 of Ordinance No. 156 and the same section of Ordinance No. 165 are both almost in the exact language of the last paragraph but one of this act. The only portion of said section relating to foreclosure of the paving lien reads as follows: "In case any such lot or parcel of land so assessed is delinquent in the payment of such assessment or any installment of principal or interest, the Board of Trustees shall cause such delinquentproperty to be sold at the same time and in the same manner asthe sale of property in the Village for delinquent generaltaxes, and at such sale said property shall be bought in by the Village if there be no other purchaser therefor." (Italics mine.)
This language follows exactly the language of the statute. Although plaintiff here has followed an alternative method of foreclosure given by the statute to any bondholder in the event the city fails or refuses to cause delinquent property to be sold as directed, nevertheless, the city's right to sell for delinquency "at the same time and in the same manner as the sale of property in such municipality for delinquent general taxes", cannot be questioned. Thus does the legislature emphasize the character of the city's act in collecting these assessments as governmental. It truly reflects the legislative thought that the city in performing the duty thus imposed upon it will be engaged in the business of collecting taxes and renders available to the city the machinery for collecting the state's taxes as well as the advantage of being able to expose delinquent properties for sale to bidders attracted to the state's tax sales.
The fact that L. 1923, c. 133, under which the ordinances in question were adopted, authorizes foreclosure by bondholders in event the city fails or neglects to sell delinquent properties, is not persuasive that the assessments are not taxes of a special kind, or that the city is not exercising a governmental function when it moves to collect them. State ex rel. Lynch v. District Court, supra. The legislature later (1929 Comp., § 141-710, L. 1929, c. 114, § 10) authorized private "persons, firms or corporations" holding tax sale certificates for general taxes to foreclose the same as mortgages are foreclosed. The general tax for delinquency in the payment of which the certificate was issued did not become *Page 472 any the less "taxes" merely because of the privilege conferred of foreclosing it as mortgages are foreclosed. Neither does this option change the fundamental character of these special benefit taxes.
If these public improvement assessments are embraced in the general category of "taxes", then, as I understand, the majority agree that we have no statute of limitations applicable to foreclosure of the liens securing them. With this concession and feeling that it has been demonstrated that they are a form of tax — a special tax — the citation of authority may seem unnecessary. But, see People ex rel. McCrea v. Atchison, 95 Ill. 452; Shepard v. People ex rel. Raymond, 200 Ill. 508, 65 N.E. 1068; Fisk v. Keokuk, 144 Iowa 187, 122 N.W. 896; Town of Asheboro v. Morris,212 N.C. 331, 193 S.E. 424; 2 Page Jones, Taxation by Assessment, §§ 1163 and 1164, and Annotation in 103 A.L.R. 885.
It is admitted that we have in New Mexico no statute of limitations providing a special period of time within which a special assessment (a form of tax, Roberts, J., in Eccles v. Will, supra) may be enforced. The statute of limitations applicable to the enforcement of the lien of general taxes does not apply. Staley v. Medford, D.C., 8 F.2d 314; Bradford v. City of Huntsville, 215 Ala. 591, 112 So. 200. Cf. City of Hartford v. Mechanics Savings Bank, 79 Conn. 38, 63 A. 658. And, enforcement is not within the limitations provided by the omnibus provision contained in 1929 Comp., § 83-104. See authorities cited in preceding paragraph. It is well settled that statutes of limitation do not apply to actions in behalf of the state or its political subdivisions such as counties and municipalities acting in governmental capacity, unless the statute expressly so provides or does so by the clearest implication. Hagerman v. Territory, 11 N.M. 156, 66 P. 526, and State v. Roy, 41 N.M. 308,68 P.2d 162.
I am strongly of the opinion that our state legislature has consciously refrained from enacting a special statute of limitations applicable to benefit assessments for public improvements. Had it done so many years ago, undoubtedly many deserving property owners would have lost their homes through foreclosures which the city or bondholders would have felt themselves compelled to institute. But they indulged in the undoubted (and what until today would have been considered a well-grounded) belief that there was no applicable statute of limitations. The effect of a holding that there is such a statute will be to penalize them for this indulgence. The holders of these obligations have been supported in their belief that there was no applicable statute of limitations by a practical construction given the matter for more than a quarter of a century by the governing bodies and legal staffs of the various municipalities of the state. Although benefit assessments in one form or another have been authorized by the laws of New Mexico for almost a half a century, now and for the first time in the history of this court, we are called upon to *Page 473 determine whether limitations statutes are applicable to special benefit assessment liens.
The result announced by the majority on the question of limitations exposes every municipality in the state having paved streets to suits by holders of paving certificates or bonds for claimed breach of the town's or city's duty as trustee to foreclose paving liens on delinquent properties before the right so to do became barred by limitations. The municipalty's position as trustee in the collection of these assessments has been recognized by this court. Hodges v. City of Roswell, 31 N.M. 384,247 P. 310. See, also, State ex rel. Lynch v. District Court, supra; Gray v. City of Santa Fe, 10 Cir., 89 F.2d 406. Cf. State ex rel. Ackerman v. City of Carlsbad, supra. In 2 Page Jones on Taxation by Assessment, § 1131, the authors state: "If the city neglects to collect an assessment which it is bound to collect for the benefit of the contractor, it is liable personally therefor * * *."
A consequence likely to follow the holding that there is an applicable statute of limitations is an effort by bondholders to fasten personal liability on the various municipalities over the state having paving for claimed breaches of their duty as trustees to foreclose paving liens within the limitations period for the first time now declared and held applicable. It is common knowledge that the aggregate amount of such delinquencies in the larger towns and cities of the state is of considerable magnitude. Furthermore, if liability exists, any judgment recovered could be enforced through mandatory levies on the property tax rolls. Constitutional and statutory limitations on the rate of taxation might afford no defense to the making of such levies. Cf. Barker, Mayor v. State ex rel. Napoleon, 39 N.M. 434, 49 P.2d 246.
Whether the municipalities would be liable to such actions for damages for breach of trust, if filed, it would, of course, be improper for me to say. Indeed, I entertain no opinion in the matter. Nor do I contend that the existence of this potential liability against our municipalities should control our decision in this case. It may be properly considered, however, on the question of the weight to be given the practical construction of the matter by municipalities and their legal staffs all over the state; also, on the question whether, there being no express limitations provided by statute, we should hold it to have been the legislative intent to include one covering public street improvement assessments under the omnibus clause of the four year statute as a matter of "clearest" or "inescapable" implication.
With due respect to the opinion of the majority, I am unable to concur therein.
Accordingly, and for the reasons given, I dissent.