The sole question before us is whether Laws 1921, c. 133, § 455, is applicable under the here existing facts. No question of legislative power is involved. The Legislature was free to prescribe as it saw fit. Its will in the matter is expressed in section 478. As to the meaning of that section we are divided in opinion in an unusual and perhaps unfortunate degree.
I have not considered the language exceptionally difficult to construe. Section 455 is one of "the provisions of this act" (chapter 133). Section 478 says that it "shall not affect or be applicable to taxes heretofore assessed, or which are delinquent at the date of the approval" of the act (March 12, 1921). The taxes in question were assessed in 1919. They became delinquent in 1920. This is the main or leading provision of this saving clause.
By way of exception, it is provided "that suit for the same [taxes previously assessed or delinquent] may be brought and judgments thereon rendered in the manner provided by this act." This, because the new procedure for foreclosing the lien involved much of efficiency, convenience, and economy to the state, while changing the taxpayer's rights or status in no substantial respect. Cf. American Nat. Ins. Co. v. Brown, 33 N.M. 42,261 P. 810.
"But," said the Legislature, "the validity of such delinquent taxes shall be determined by the law in force at the time of making the assessments therefor." In this language the courts were, no doubt unnecessarily, reminded that, though authorized to proceed with the foreclosure under the new act, the substantial question (always in this suit the validity of the tax) must be decided under the repealed acts.
I am unpersuaded that this mere caution, appended to the exception, modifies what I have called the main provision, or that the whole meaning of the saving clause is found in the appendage. Nor am I persuaded that the Legislature may be deemed to have said: "The provisions of this act shall not affect or be applicable to taxes heretofore assessed, or which are delinquent,and upon which suit has been brought, at the date of the approval hereof."
Prior to Williams v. Van Pelt, 35 N.M. 286, 295 P. 418, I find nothing in our decisions opposed to these views, except Chambers v. Bessent, 17 N.M. 487, 134 P. 237. That case I think lost authoritative standing when a contrary view was expressed and given effect in Crawford v. Dillard, 26 N.M. 291, 191 P. 513.
I consider Williams v. Van Pelt, supra, not controlling. It ignored section 478 as determinative of the question whether section 455 was there applicable. That question was unnecessarily decided, since a mere assumption would have been sufficient.
My effort, up to this point, has been merely to state my views. The majority definitely reject them. I have no desire, if I could hope, to outargue my associates. I have stated my position for different reasons. *Page 369 First, able counsel have urged it upon us again and again during the thirty-year career of this luckless product of the legislative wisdom. They might continue to urge it were it not here plainly set forth and as plainly rejected. Second, the surrender of my own views does not leave the court united. I must take a secondary position.
In this particular case, I could, obviously, concur in an affirmance of the judgment. I conceive, however, that litigants are entitled to have the law applied as it is, not as some judge thinks it should be. This case and Duran v. Springer, 37 N.M. 357,23 P.2d 1083, which we have considered and are deciding simultaneously, make it plain that it is not and has not been the law that section 455 is inapplicable because the tax had been assessed before the effective date of chapter 133. What, then, is and has been the law?
The history of tax legislation in this state presents a picture of the conflicting interests and claims of the investor in tax titles, on the one side, and of the taxpayers who have indulged in the luxury, or been unable to avoid the necessity, of delinquency, on the other side. The tide of battle has ebbed and flowed. Under the looser statutes, particularly that of 1913 and in a lesser degree that of 1917, the way of the investor has been beset with difficulty. The stricter statutes, those of 1899 and of 1921, have cut off numerous means of saving the taxpayer's property. Each time that there has been a tightening of policy in aid of tax collection, and incidentally in favor of the investor, the Legislature has made use of section 478 or its substantial counterpart. Why?
I think the Legislature intended to write a saving clause. It intended to preserve, as to taxes already assessed or delinquent, those advantages (not vested rights of course) then enjoyed by the taxpayer at the expense of the investor, and to apply its new policy of strictness to taxes thereafter to be assessed. It thus softened the blow.
I can, as I must, surrender this view of the meaning and purpose of section 478 to the decision, concurred in by a majority, that the Legislature, through defects in expression, has failed in that purpose, or that my view is precluded by former decisions. Thus yielding, I embrace the interpretation set forth by Brother BICKLEY that there remains nothing of the saving clause of section 478 except the provision that the validity of taxes assessed or delinquent prior to March 12, 1921, is to be determined according to the laws in force when the assessments were made. I find nothing to support or commend the theory espoused by Brother SADLER that section 478 is to operate as a saving clause merely in a case like this, where the general tax suit had been commenced prior to the effective date of chapter 133.
The statute does not support it. To determine whether the provisions of chapter 133 are applicable, the statutory criterion is whether the taxes in question had been theretofore assessed or were delinquent; not whether suit had been commenced. Rejection *Page 370 of the prescribed criterion does not authorize us to set up one of our own.
If we were at liberty to adopt a construction so foreign to the language, I can see no public policy to be served by so doing. Instead of aiding the large and well-defined class of property owners whose taxes had been assessed or were delinquent, it would aid a small and ill-defined class. A purely accidental circumstance would determine the matter; the circumstance that the general tax suit had been commenced on or prior to March 11, 1921, under former statutes, rather than on or after March 12th, and under the new statute; a circumstance sure to vary in the different counties. The resulting confusion need be no more than suggested.
This theory is a middle ground. It seems to arise from a recognition of section 478 as an attempted saving clause, and a conviction that former decisions control against the interpretation I here espouse. But I think that no former decision reasonably suggests — surely none compels — this theory. I feel that we should merely make a bad matter worse by adopting it.
I therefore concur in reversing the judgment.