(dissenting).
It is neither right nor just that the City of Eunice should be placed in the position of having and enjoying the paving improvement shown and, then, sending away empty handed a benefactor which had carried same to completion at its own expense, in the first instance. The benefactor had been promised and expected reimbursement for two-thirds of the cost, upon completion, only to find itself saddled with the whole of it with little hope of recovering any of it, in the end. Such is the likely result of the decision today handed down by the majority.
Undoubtedly, the legislature was moved by a desire to prevent this very thing when it enacted the reassessment statute, L.1923, c. 46 (1953 Comp. § 14-41-14) pursuant to which the reassessment here annulled took place. It is only where, due to some legal impediment, a city’s effort to accomplish a described municipal improvement is about to abort, or for any cause whatever has been * * * “set aside, annulled or declared void by any court,” that the reassessment statute comes into play.
It has impressed me the same rationale underlies the enactment of this statute as supports our decision in Shaw v. Board of Education, 38 N.M. 298, 31 P.2d 993, 93 A.L.R. 432, namely, a desire to avoid the unjust enrichment of one at the expense of another. And, where, as in this case, and in line with the statute’s objective, there is respectable authority to support the trial court’s decision, we should approve and follow it. We find such authority in Cowart v. Union Paving Co., 216 Cal. 375, 14 P.2d 764, 83 A.L.R. 1185.
The only reason given by the majority for declining to follow it arises on the presence in the act of certain language providing it shall not be deemed to repeal or amend any provisions of existing law relative to municipal improvements referred to in section one (1) of the act and the asserted absence of such language in the California statute on reassessment. The majority claim California had no such statute as our section 14-41-18. If this is a reference to California’s reassessment statute as a whole, they are clearly in error. See Hillyer’s Supplement Annotated (1923) Ch. 47, § 28, page 1482. The grounds for reassessment are almost identical with ours.
If, on the contrary, the majority limit their statement California has no such statute as ours to so much of section 14-41-18 as they quote disclaiming an intention to have any of the act construed as repealing or amending any provisions of existing law relative to original assessment for any municipal improvement, well and good. But what distinction does that afford? None whatever that I can see. It only emphasizes to my mind the absence of a valid reason for failing to follow the case as a precedent when a distinction without a difference is relied upon for failing to do so.
Furthermore, that the supposed distinction is one without a difference is clearly and demonstrably shown by the language of 1953 Comp. § 14-41-20 (1923, c. 46, § 12), in directing the provision for reassessment in any city charter shall be deemed as providing a concurrent remedy as against repealing any existing provision therefor. It reads:
“This act (14-41-9 to 14-41-22) shall not be construed as repealing the provisions now existing in any city charter for the making of new assessments or reassessments, but shall be considered as providing a concurrent remedy in such cases. And any city whose charter provides for any such new assessment or reassessment may proceed either under such charter provisions or under this act.”
Significantly, our legislature by one section of the act, 1953 Comp. § 14-41 — 22 (L. 1923, c. 46, § 14) declares:
“This act (14-41-9 to 14-41-22) being remedial in its nature, shall be liberally construed according to its true intent and purpose, to the end that real property actually benefited by local improvements shall be required to pay in full for the benefit thus conferred.”
The State Highway Department in order to expedite its major objective of providing adequate state highways through our municipalities (compare, Farnsworth v. City of Roswell, 63 N.M. 195, 315 P.2d 839) on occasion assumes a substantial part of the cost of paving programs crossing city lines. The City of Eunice, it should in fairness be said, is not unmindful of its obligation in the premises and has sought advantage of a statute enabling it, as promised, to reimburse the Highway Department for the substantial aid thus afforded it. The distinction relied upon by the majority for refusing to follow Cowart v. Union Paving Company, supra, on almost identical facts, is imaginary and unrealistic, in my opinion. It looks from this vantage point as if the State Highway Department, in final analysis, may have to bear the entire cost of the improvement in Eunice, a result never contemplated either by the city fathers, or the legislature, and truly a miscarriage of justice, if it occurs, as now seems likely.
The learned trial judge sensed this possibility and giving a construction of the statute, which finds support in a well reasoned opinion from a sister state, rendered what appeals to me as a truly righteous judgment, deserving affirmance. The majority think it should be reversed.
Strongly convinced otherwise, myself, I dissent.