The appellees, plaintiffs below, filed a complaint in ordinary form to quiet title to a small piece of real estate in the town of Alamogordo. The appellant, defendant at the trial, answered setting up ownership of the property by virtue of a tax deed to it issued pursuant to a certain tax sale certificate evidencing a sale to Otero county for delinquency in payment of 1919 taxes, and subsequent assignment thereof to defendant. In a reply the appellees admitted the issuance of the tax deed which was copied at length in appellant's answer, but asserted divers and sundry reasons for its invalidity and that of the tax sale certificate whose contents were recited in detail in the tax deed. A demurrer to the reply was interposed and overruled, and the cause later proceeded to trial.
Upon the trial the appellees offered in evidence a deed to the immediate grantor of one of the appellees, then the deed from such grantor to the appellee Kreigh, and rested. Thereupon, the appellant moved for judgment upon several grounds, but chiefly that appellees had failed to submit proof to support the claimed invalidity of the tax title, and that, having admitted the existence of the tax deed pleaded, a prima facie case in appellant's favor was established entitling it to judgment on the state of the proof. The motion for judgment was denied, the appellant announcing it would stand on its motion. Appellees then asked leave to reopen their case to offer further proof. This motion was likewise denied. The court thereupon entered its decree quieting title in appellees to the lot in *Page 372 controversy. The effect of this was, of course, to deny appellant's claim to a valid tax title. The present appeal followed.
The proceedings leading up to tax sale were initiated under the provisions of chapter 80, Laws of 1917. Taxes on the property in question being for less than $25 were not required to be based on judgment. It sufficiently appears from the record that tax delinquencies for 1919, in amounts so requiring, had been placed in judgment on or before March 9, 1921, in a tax suit prosecuted for that purpose, since an order of sale issued on the date mentioned. The sale relied upon appears to have taken place April 5, 1921, to Otero county. Tax sale certificate to the county was dated April 5, 1921; assigned to appellant August 3, 1926, after lapse of the prescribed period of redemption; and tax deed issued on August 18, 1926. In the meantime and on March 12, 1921, chapter 133, Laws of 1921, a new taxing code, became effective. Section 455 of the 1921 act gives prima facie effect to the tax deed in making proof of certain steps essential to the validity of a tax title. If it applies and governs, there can be no doubt of appellant's right to prevail.
In the absence of such an enabling statute, the burden of proof is on the purchaser of a tax title to show compliance with the statutory prerequisites essential to the existence of the title relied upon. This burden is not met by the mere production of a tax deed. Black on Tax Titles, §§ 443-444; 61 C.J. 1369-1372. Such was the rule at common law and so remains unless changed by statute. Accordingly, the admission in appellee's reply that this tax deed existed in no manner relieved appellant of the burden of proving the statutory steps warranting its execution and delivery, unless the statute relied upon applies and governs this case. The appellant by invoking and relying upon said section 455 contends that it does.
Hudson v. Phillips, 29 N.M. 101, 218 P. 787, presents a situation somewhat analogous to the case at bar, in that there reliance was placed upon section 455 as furnishing presumptive effect to a tax deed issued under proceedings originating prior to the passage of the Laws of 1921, chapter 133, of which said section was a part. This decision, as we interpret it, does not aid the position of the present appellant. Any reliance upon the case must be based on the contention that, but for N.M. Const. art. 4, § 34, denying effect on pending cases to any change in the rules of evidence or procedure, the decision would have been exactly opposite what it was. Any such assumption is unwarranted. The opinion itself goes no further than to hold that, even if tax title claimant in that case were correct in the application sought to be given Laws 1921, c. 133, § 455, making tax deeds prima facie evidence of certain facts, he could not prevail, since the constitutional provision in question would deny it application to that case as one pending when the 1921 law became effective. This court merely assumed the correctness of the contention for the purpose of disposing of the argument made. *Page 373
We are thus confronted at the very threshold of the present case with a determination of what law governs the rights of the parties, viz., the provisions of chapter 80, Laws of 1917, and other then existing enactments governing the collection of delinquent taxes, under the authority of which the sale in question was initiated and held; or the provisions of chapter 133, Laws of 1921, effective March 13, 1921, some three weeks prior to the tax sale held April 5, 1921, except as suspended by certain saving clauses therein contained.
The interests of the parties are decisively affected by a determination of this important question. The appellees very naturally relate their rights to the 1917 and other then existing laws touching the matters at issue. The appellant, no doubt by reason of the very fact that the sale in question transpired after the effective date of the 1921 law, invokes the provisions of that act, particularly section 455 thereof.
No decision of the question can, of course, be had without a construction of the saving clause contained in Laws 1921, c. 133, § 478, reading as follows: "That Sections 5464, 5465 and 5475 to 5511, inclusive, of the New Mexico Statutes, Annotated, Codification of 1915, Chapters 58 and 78 of the Laws of 1915, Section 10 of Chapter 54 of the Laws of 1915, and Chapter 80 of the Laws of 1917, and all other acts or parts of acts in conflict herewith are hereby repealed; Provided, that the provisions of this act shall not affect or be applicable to taxes heretofore assessed, or which are delinquent at the date of the approval hereof, except, that suit for the same may be brought and judgments thereon rendered in the manner provided by this act, but the validity of such delinquent taxes shall be determined by the law in force at the time of making the assessments therefor."
Just what is the meaning and effect of the language of section 478, standing alone, or interpreted in connection with other saving clauses found in the same act as sections 509 and 602 thereof? Does it mean that, except as to the two things mentioned, the bringing of suit and recovery of judgment, the new act is to be without any effect on tax titles originating upon assessments made prior to its enactment, or is it entitled to a different construction as expressive of true legislative intent? We must seek the answer in our previous decisions dealing with the language of this section as found in this and prior delinquent tax laws.
The troublesome question of what law governs the rights of the parties in tax title cases has been many times before this court. Upon numerous occasions we have been called upon to settle the question without a construction of the language of the above-quoted saving clause. Again, in other cases said language, or substantially the same, as it has appeared in Laws 1899, c. 22, § 34, or in Laws 1917, c. 80, § 18, or as just quoted, in Laws 1921, c. 133, § 478, has been before the court for construction. The language first appeared in the 1899 law, known as the "Duncan Act." Chapter 84, Laws 1913, a new delinquent tax law, repealed the 1899 law without a saving clause. Not long after the enactment of the 1913 law the availability of its *Page 374 provisions for collection of taxes for prior years came before this court for determination.
Crane v. Cox, 18 N.M. 377, 137 P. 589, 590, invoked a decision upon the power of the county treasurer of Dona Ana county to proceed under the 1913 law to sell property for taxes assessed and delinquent for years prior to its passage. It was contended that to permit such a sale would be to give retroactive effect to the 1913 law. We sustained the power of the taxing officials to employ the machinery of the new law to collect taxes assessed or delinquent prior to its passage, and held that the new law in operating upon taxes for previous years was being given only a prospective operation. We said: "A law is not retrospective, or a law does not operate retrospectively, simply because it applies to transactions which originated before the law took effect; but it is the nature of the application that is determinative."
In Pace v. Wight, 25 N.M. 276, 181 P. 430, 434, our decision was invoked upon the effect of the 1913 law viewed from a different standpoint. Under the 1899 law the period of redemption was three years from the date of sale. Under the 1913 law it became three years from the date of recording the tax sale certificate. We there held, upon rehearing, that the 1913 law operated retroactively upon all tax sale certificates held by the county when the 1913 law came into effect, so as to extend the period of redemption, in favor of the taxpayer, to three years from the date of recording the certificate. The court was helped to this conclusion by the circumstance that the 1899 law had been repealed without saving clause and was considered, "except as to transactions past and closed, as though it had never existed." It was conceded that the 1913 law, thus interpreted, amounted to an act of grace on the part of the state. Attention was called to the fact, moreover, that, because of constitutional guaranties against impairing the obligation of contracts, the 1899 law could not be deemed repealed as against private purchasers at tax sales held during the existence of the 1899 law.
The holding in Pace v. Wight was followed consistently and upon the same reasoning in State v. Romero, 25 N.M. 290, 181 P. 435; Crawford v. Dillard, 26 N.M. 291, 191 P. 513; Lewis v. Tipton,29 N.M. 269, 222 P. 661; and Christian v. Lockhart, 31 N.M. 331,245 P. 249. None of the cases mentioned in this paragraph, except Crawford v. Dillard, undertook a construction of, or was concerned with, the language of the above-quoted saving clause. All of them, in so far as concerned the retroactive effect given the 1913 law, were decided independently of the language of any such provision.
Now, we turn to a line of cases dealing with the specific language of the above-mentioned saving clause. So far as our research discloses, said provision occurring in one or another of the different taxing laws mentioned is either specifically mentioned or construed in the following cases, to wit: Territory v. Perea, 10 N.M. 362, 62 P. 1094; U.S. Trust Co. v. Territory,10 N.M. 416, 62 P. *Page 375 987; Straus v. Foxworth, 16 N.M. 442,117 P. 831, 832; Chambers v. Bessent, 17 N.M. 487, 134 P. 237, 241; Crawford v. Dillard, 26 N.M. 291, 191 P. 513, 515; State Tax Commission v. Powers, 29 N.M. 10, 218 P. 186, 187; State v. Persons, 29 N.M. 654, 226 P. 886, 889; Williams v. Van Pelt,35 N.M. 286, 295 P. 418, 420. In addition, the construction placed upon said provision in Williams v. Van Pelt, supra, without citing the section, was followed in determining the rights of the parties in Baker v. Johnson, 35 N.M. 293, 295 P. 421; Moore v. National Bank of New Mexico, 35 N.M. 300, 295 P. 424; Knollenberg v. Mitchell, 35 N.M. 345, 297 P. 145; and Knollenberg v. State Bank of Alamogordo, 35 N.M. 427, 299 P. 1077 — all being cases which were under advisement along with Williams v. Van Pelt.
Territory v. Perea, supra, and U.S. Trust Co. v. Territory, supra, deal with this saving clause as it occurs in Laws 1899, c. 22, § 34. The opinion in each case turns on other provisions of the 1899 law, and nothing helpful in construing the provision is to be found in either.
Straus v. Foxworth, supra, was concerned chiefly in meeting the contention that the curative provisions of section 25 of the 1899 law were limited to errors in listing property. The court held otherwise, and in the course of its discussion adverts to the saving clause contained as section 34 in the act. It should be mentioned, too, that this same section 34 extended the payment of all taxes then delinquent to May 1, 1899, sixty days beyond its effective date. The opinion seems to forecast the holding in Chambers v. Bessent, which followed soon thereafter. The court said: "In section 34 there are provisions for mitigating what might be considered the rigors of the act through leaving the validity of delinquent taxes to be determined by the law in force when the assessment was made, and by extending the time of payment of taxes then delinquent, or in litigation at the passage of the act. This measure of leniency toward defaults already made was superfluous, if no greater degree of strictness was to be exercised toward defaults of the future."
Chambers v. Bessent, supra, was decided two years later. The case turned upon whether a tax certificate for taxes of 1898 issued upon a sale under the 1899 law furnished color of title. Obviously, the certificate prescribed by the 1899 law was color of title, if only such law were applicable. It was urged, however, that, by virtue of this saving clause, the law in force in 1898 was carried forward and controlled the question. We held in an opinion by Mr. Justice Hanna, adopting the language of Judge Pope at nisi prius: "I am [we are] of opinion that the proper construction of the concluding clause of this act is that, while it did not interfere with any assessments previously made, all of which were to be judged by the pre-existing law, it was contemplated by the Legislature that as to any proceedings subsequent to the act, entirely separate and apart from the matter of assessments, the provisions of the act were to control." *Page 376
Crawford v. Dillard, supra, followed Pace v. Wight and State v. Romero in giving retroactive operation to the 1913 law in its effect on tax certificates held by the county at the time of its passage, thus holding the period of redemption to have been extended to three years from recordation of the certificate. So much of the holding in that case involves no construction of this saving clause. It is only in so far as the opinion deals with Laws 1917, c. 80, § 18, that we are concerned. For, while Laws 1915, c. 78, an amendment to the 1913 law, had intervened changing the period of redemption from three years after recording certificate to three years from date of certificate, since the date necessarily precedes the recording, to have held that the Legislature intended retroactive operation for the 1915 amendment, as was declared in Pace v. Wight and kindred cases to have been the legislative intent with reference to the 1913 law, as an act of grace by the state, would have resulted in reducing, instead of extending, the taxpayer's period of redemption — an intent which we were unwilling to impute to the Legislature. We accordingly held that the 1915 amendment, as its terms disclosed (though no less clearly than those of the 1913 law except for the result to follow), was intended to operate prospectively only.
Having thus demonstrated the prospective character of the 1915 amendment, we turned to the 1917 law, and cited section 18, the saving clause, in proof of its prospective nature, saying: "This [1917] act, by its terms, does not purport to deal with taxsales had prior to its passage, and, on the other hand, its retrospective operation is expressly limited by section 18 as follows:" (Quoting the so-called saving clause.)
We went on to say that, even without the "limiting language" of section 18, the saving clause, section 12, the only one in the 1917 act referring to the sale by the county of tax certificates, "clearly speaks to the future only." In this case, in so far as we considered the 1917 law, we dealt with the applicability of its provisions to a sale held under a previous law. We said it did not purport to deal with "tax sales had prior to its passage." In Lewis v. Tipton, supra, another of the group of cases following Pace v. Wight, in giving retroactive effect to the 1913 law in its application to tax certificates held by the county upon its effective date, we again thus interpreted the effect of our holding in Crawford v. Dillard, in so far as it related to the 1917 law, saying: "We further held in the Crawford-Dillard Case that chapter 78, Laws of 1915, and chapter 80, Laws of 1917, had prospective operation only, and had noeffect upon tax sales made prior to their enactment."
We in no sense intimated or held in Crawford v. Dillard (something to be borne in mind) that giving purely prospective operation to the 1917 law would deny applicability of its provisions to sales under it for taxes assessed or delinquent for years previous to its enactment, a contention scarcely to be urged in view of the clear distinction developed in Crane v. Cox, supra, between the *Page 377 nature of retrospective and prospective statutes.
Coming now to State Tax Commission v. Powers, supra, we find it one of the two cases most to be relied upon as adopting a construction in conflict with that announced in Chambers v. Bessent and Williams v. Van Pelt, the other being Crawford v. Dillard. Here we find a situation somewhat different from that disclosed in the cases already discussed. Each of them, save State v. Romero, a suit in mandamus against the county treasurer to compel issuance of a tax deed, was a suit involving the title claimed under a tax deed. All, including State v. Romero, were concerned with tax deeds as ripened muniments of title. But in the Powers Case we find a taxpayer, some months after the 1921 law became effective, seeking to secure cancellation of assessments on 42 head of cattle in Valencia county for the years 1918, 1919, and 1920, upon the ground that he owned no such property for the years in question.
While there is nothing in the opinion to suggest that petitioners were moving under the 1921 law to secure the cancellation sought, special counsel for state tax commission appeared in opposition and argued that certain provisions of said law governed the time for presenting such petition, as against section 5475, Code of 1915, and Laws 1919, c. 101, each in force and applicable for one or more of the years in question, unless the repeal of the last-mentioned statutes by the 1921 act was suspended by virtue of the saving clause contained as section 478 thereof. In disposing of the contention we said: "It is contended that certain provisions of chapter 133, Laws 1921, govern the time within which this petition should have been presented, and that it was not presented within the time required by that act. This contention is untenable. The statute is clearly prospective, and does not appear to be retrospective in its operation, except that the procedure therein prescribed for the collection of taxes may be adopted in the collection of taxes assessed or due prior to the adoption of the statute. The saving clause contained in such statute is practically the same as that contained in chapter 80, Laws 1917, which was construed by this court and held to expressly limit the terms of the statute to a prospective operation. Crawford v. Dillard, 26 N.M. 291, 191 P. 513."
Some of the language employed in the Powers Case is broad enough to sustain a construction of said section 478 that, except as to bringing suit and rendering judgment under the 1921 law, the rights of the parties are to be tested by the laws in force when the property was assessed. But what does the opinion actually decide? It is only to such extent that it is stare decisis. Anything said beyond that is pure dictum. The point decided was that a statute prescribing the timeliness of proceedings to correct assessments remained in force and was applicable to the case before the court by virtue of said saving clause. It decided that and nothing more. If the taxpayer was making timely *Page 378 application under the law in force when the assessments were made, the court had power to correct same. If his application was tardily made, the assessments were valid as they stood.
It cannot be questioned but that in the Powers Case there was involved a proceeding looking to the validity or invalidity of an assessment. Under the express language of the saving clause the laws in force at the time of making the assessment were continued in force for testing the "validity of the tax." We so held in Chambers v. Bessent and, as hereinafter shown, in Williams v. Van Pelt. And certainly no tax could be valid which was based on a void assessment.
State v. Persons, supra, was a suit by the state under Laws 1921, c. 133, to collect a balance of taxes claimed to be due on certain grazing and farm lands for the year 1920. Appellants had paid what they conceded to be justly due. The law in force when the property was returned required assessment at its "actual value." Under the 1921 act it was a lawful defense in any suit for taxes to show that the property had been assessed in excess of its "actual cash value." Its actual value had been finally fixed by state tax commission before the filing of suit at a figure which the trial court found to be excessive. The question for determination was whether the defense, permissible under the 1921 law, was open to the taxpayer. State tax commission, as appellee, apparently was contending that the defense was unavailable in reliance upon said section 478. After quoting this section and section 431, permitting the defense mentioned, we said: "Were this the only language of the 1921 act to be construed, we would be strongly persuaded of the correctness of appellant's position, but in section 509 of the act, which is a repealing section, we find the following language: `This repeal shall not affect classifications or valuations made or to be made and rights or liabilities already accrued thereunder' (referring to previous acts). As we have already seen, the actual cash value of appellant's property had become finally established as a matter of law before the 1921 act became effective, and for the court to undertake to revalue the property in accordance with its ideas would certainly affect the valuation already made, the very thing sought to be avoided by section 509."
Our view of the proper construction to be given section 478 so far as expressed or intimated in the Persons Case is in harmony with the interpretation placed upon the same language in Chambers v. Bessent and Williams v. Van Pelt.
Williams v. Van Pelt, supra, involved taxes delinquent for the year 1920. Suit was prosecuted, judgment recovered, and sale held under Laws 1921, c. 133. Sale to the county took place December 10, 1921, and certificate of sale was assigned to appellant on January 2, 1926. This very saving clause, section 478, was before the court for construction. In the first opinion handed down we announced the holding that, except to authorize the bringing of suit and recovery of judgment, the 1921 law had no effect upon the rights of the parties, such rights being *Page 379 determinable by the laws in force at the date of the assessment. Upon rehearing an able brief was filed by counsel for appellee in that case. In it, under the heading, "Sec. 478, c. 133, Laws 1921, considered historically and judicially," counsel reviewed practically every case that had theretofore interpreted the language of this saving clause, particularly Chambers v. Bessent, Crawford v. Dillard, State Tax Commission v. Powers, and State v. Persons, urging upon us that the construction given the language of the saving clause in the first opinion handed down was "wrong and unsound intrinsically as well as out of line with previous constructions."
After consideration the first opinion was withdrawn. We handed down a substituted opinion on rehearing which, while adhering to the result previously announced, gave effect to the language of the saving clause, as follows: "(a) It seems to be conceded by the parties, and we understand the rule to be, that the law in effect at the time of sale governs the matter of redemption and acquiring title after failure to redeem. Cooley on Taxation (4th Ed.) par. 1384. Appellee insisted below, and the court held,that the statute of 1921, under which the sale was made, governedthe matter. This is correct. [Italics ours.] When the 1921 Act became effective March 12, 1921, the first half of the taxes of 1920 were past due, but the last half was not yet payable. Under such circumstances, the Legislature had the undoubted power to change the procedure for enforcing delinquent taxes and to make that procedure applicable to the taxes for 1920. There had been no sale and consequently no right of redemption had arisen. Sales to be thereafter made were within the prospective scope of the act whether they were for past or future years. The taxpayer whose property had not been sold prior to the passage of the statute had no vested right in the former procedure to enforce collection. He was not yet the subject of suit. He could avoid sale by paying what the law required. He could insist that the validity of the assessment should be determined by the law in force when it was made. And the law so provided. Section 478, c. 133, Laws of 1921."
The language of that opinion is the latest expression of this court upon the subject. The rights of the parties in that case and in the group of tax title cases, hereinabove noted and held under advisement along with it, were passed upon and determined under the construction followed in Williams v. Van Pelt. It harmonizes with the construction forecast in Straus v. Foxworth and adopted in Chambers v. Bessent; accords with the interpretation intimated in State v. Persons; and is not inconsistent with anything that is actually decided and therefore stare decisis in Crawford v. Dillard and State Tax Commission v. Powers. Certainly, the pronouncement in Williams v. Van Pelt declares the present settled state of the law upon the subject, and we see no reason to overrule or depart from the same.
We thus find certain matters regarding the proper construction of this saving clause to have been definitely settled by adjudicated *Page 380 cases. Crane v. Cox, dealing with the 1913 law, enacted without a saving clause and operating to repeal the 1899 law, holds that the collection of delinquent taxes for years previous to its enactment is within the prospective scope of the new act. Chambers v. Bessent and Williams v. Van Pelt, construing respectively the 1899 and 1921, acts, containing this identical language, decide that taxes for prior as well as future years are within the prospective scope of the new acts; that proceedings had and sales held under them are governed by their provisions, except as to the validity of the assessment, and as for that matter, and necessarily so, except as to any other acts done under the sanction of previous laws in force when such acts were performed. State Tax Commission v. Powers likewise holds this language in the 1921 law effective to preserve in force pre-existing laws on matters touching the validity of the assessment. Crawford v. Dillard determines that the 1917 act carrying the same language was not intended to deal with "tax sales had prior to its passage," a construction reaffirmed in Lewis v. Tipton.
But the case at bar presents a state of facts different from any disclosed by our adjudicated cases, and one which must have been in the legislative mind when it incorporated the saving clause into the new act. Its effective date caught the proceedings for collection of 1919 delinquencies in a half-finished stage. Proceeding under the 1917 law, judgment for taxes in excess of $25, was entered and the property ordered sold, on March 9, 1921. The new act went into effect on March 12th, three days thereafter. The property in question could only have been sold, under the proceedings initiated, by virtue of the 1917 law. It was sold for taxes for less than $25, and was not based on a judgment. The 1917 law permitted such a sale. The 1921 act directs judgment to support a sale irrespective of the amount of taxes.
Cooper v. Hills, 23 N.M. 696, 171 P. 504, 505, in its facts, is somewhat similar to the case at bar, but with this difference, namely, that the 1913 act there considered had no saving clause. Proceedings were begun under the 1899 law to sell property for a delinquency in the payment of taxes for 1911. The 1913 act became effective March 18, 1913. The sale was held March 27, 1913. The question involved was an irregularity in the assessment, which under the 1899 law would have been inconsequential. The court said: "The assessment in 1911 was irregular, in that the law then required that it should be made in the name of the owner of the property or in the name of unknown owners. Sections 4026 and 4040, C.L. 1897. But while it was irregular in that respect, the Legislature saw fit to provide that such irregularity should not vitiate the sale made by virtue of such assessment and its delinquency. In 1913, however, this was changed; no healing or curative provisions having been inserted in the act of 1913. Nor did the act contain a savings clause. Consequently, sales for delinquent taxes made after the act of 1899 was repealed are governed by the *Page 381 law in force at the time the sale is made. The appellant having acquired no rights under the tax sale law of 1899, cannot invoke the provisions of that law in defense of the sale under the act of 1913."
We find it reiterated time and again in the texts and cases that ordinarily the law in effect at the date of sale governs in the matter of redemption and acquiring title after sale. Cooley on Taxation (4th Ed.) par. 1384, Williams v. Van Pelt, supra. And to the effect that the rights of the parties are governed generally by the law in force at date of sale, see Cooper v. Hills, supra, and Chisholm v. Bujac, 27 N.M. 375, 202 P. 126. But notwithstanding these general statements, the power of the state to subject incidents to follow the sale to subsequent legislation cannot be questioned, so long as the rights of prior individual purchasers are not materially affected.
Then what law, as respects this sale, was in effect at the date thereof on April 5, 1921? It is our view that, by virtue of section 478, construed in connection with sections 509 and 602, companion saving clauses found in the 1921 act, it was chapter 80, Laws of 1917, as well as all other applicable pre-existing laws affecting the matters at issue. If such prior laws were by these saving clauses continued in force to authorize and validate this sale, proceedings for which were pending at the time the 1921 law became effective, and we consider they were, then to all legal intents and purposes it is the same as though the sale had actually antedated the passage of the new law. And as said in Crawford v. Dillard of the 1917 law containing a similar saving clause, the new act was not intended "to deal with tax sales had prior to its passage."
Except as it might aid the proper interpretation to be given section 478, we are not here concerned with the permissive character of its language in relation to bringing suit and recovering judgment on taxes theretofore assessed. After the proviso, the section recites that the provisions of the act shall not affect or be applicable to taxes theretofore assessed, "except, that suit for the same may be brought and judgments thereon rendered in the manner provided by this act," but admonishes that the validity of such delinquent taxes shall be determined by the law in force at time of making the assessments therefor.
In view of the obvious contribution to public convenience, efficiency, and economy accomplished by the new act, particularly respecting procedure for collecting delinquent taxes, as pointed out in American National Insurance Company v. Brown, 33 N.M. 42,261 P. 810, and Williams v. Van Pelt, supra, there is ample authority and sound reason to suggest that the words "may be" were employed in a mandatory sense. See 59 C.J. 1082 (1085); Lorenzino v. State, 18 N.M. 240, 135 P. 1172; 5 Words and Phrases, First Series, page 4436; 5 Words and Phrases, Third Series, page 53; 2 Words and Phrases, Fourth Series, page 667. But the question is not before us and cannot now be decided. *Page 382
As throwing additional light on legislative intent, it may be mentioned that the 1921 law did not confine the taxing officials to the blanket suit for a single year's taxes contemplated by section 421 thereof. Section 448 authorized the Attorney General, district attorney, or special counsel to bring a separate action to recover taxes due from any person, or upon any property, where the amount was in excess of $100. The judgment to be recovered might be in personam or in rem, or both, and was required to cover all taxes then due and unpaid from such person or property "whether by reason of one, or more than one, assessment." The judgment was also required to contain an order of sale of the property.
It would be an anomalous situation if a tax deed issued upon a tax sale under such a judgment, covering taxes assessed both before and after the effective date of the new act, were to have one effect when considered as based upon taxes assessed previously and another effect when considered as based upon taxes assessed subsequently to the passage of the 1921 act. No such result could have been intended. Unquestionably, the Legislature intended that taxes for past as well as future years should be within the prospective scope of the new law and its provisions for suit, judgment, sale, redemption, and acquisition of title.
It follows from what has been said that the provisions of the 1921 act, and particularly those of section 455 making the tax deed prima facie evidence, under our view, were not applicable to the tax title here involved. We think the trial court was correct in declining to give the tax deed presumptive effect, and that its judgment should be affirmed.
HUDSPETH, J., concurs.