(concurring in part and dissenting in part).
I concur and dissent.
Lovelace sued defendants in two counts under § 44-6-13, N.M.S.A.1978 of the Deelaratory Judgment Act, to obtain a refund of 1976 and 1977 property taxes paid the county treasurer.
Count I sought a refund of 1976-77 taxes paid because its property had been continuously classified as exempt from property taxation from about 1968 through 1975; that it is and always has been used by Lovelace for charitable purposes, and it is, therefore, exempt from payment of the New Mexico property tax for the tax years 1976, 1977 and thereafter under Article VIII, § 3 of the New Mexico Constitution, in the absence of a substantial change in circumstances. Lovelace also sought a judgment restraining and enjoining defendants from assessing, collecting or attempting to collect any real property tax as long as its property remained in the ownership and possession of Lovelace and continued to be used for charitable and educational purposes.
Count II sought to declare the county assessor’s 1976 assessment void because the county assessor arbitrarily departed from the prior exempt treatment accorded Lovelace and placed its property on the tax rolls for the calendar year 1976; that in equity and good conscience Lovelace’s payment of 1976 property tax should be refunded if the court determines that the property is exempt because a retention of monies paid for 1976 would be a deprivation of Lovelace property without due process of law.
Defendants answered in denial and set forth as an affirmative defense, that, with reference to the 1976 values assessed, the complaint was not timely filed.
In its judgment, the trial court found:
1. That Plaintiff is a non-profit New Mexico Corporation which is exempt from Federal income tax under Section 501(c)(3) of the Internal Revenue Code of 1954 as amended.
2. That Plaintiff’s property, the property tax exemption of which is the subject of this action is operated as part of a hospital.
. 3. That the property referred to in Paragraph 2 is and has been used for charitable and educational purposes. Therefore, said property is and should be exempt from New Mexico property tax under Article VIII, Section 3 of the Constitution of the State of New Mexico.
Based upon these findings, the court entered judgment for Lovelace in the following respects:
1. Defendants were directed to refund the 1977 property tax payment.
2. Lovelace’s property is and always has been used for charitable purposes and is therefore exempt from taxation for the years 1977 and 1978 and thereafter in the absence of any substantial change in the use of the property, under Article VIII, § 3 of the New Mexico Constitution.
3. Defendants are restrained and enjoined from placing the property on tax rolls in the absence of a substantial change in use of the property and defendants are specifically ordered to rem'ove the property from the tax rolls for Bernalillo County for the year 1978.
Judgment was entered for defendants in this respect:
4. Lovelace’s claim for a refund was denied for the 1976 property tax because its filing of the refund claim was untimely.
Defendant, Bernalillo County, appealed from the judgment of the district court.
Lovelace cross-appealed from paragraph 4 of the judgment.
A. The judgment in favor of Lovelace is affirmed.
Defendant did not request findings of fact and conclusions of law. Neither did defendant challenge the court’s findings. The Supreme Court has repeatedly held that a party who does not request findings of fact and conclusions of law cannot, on appeal, obtain a review of the evidence. McNabb v. Warren, 83 N.M. 247, 490 P.2d 964 (1971). The judgments in favor of Lovelace should be affirmed.
B. The county assessor's 1976 assessment was void ab initio.
Lovelace, in its cross-appeal, argues that the statutory refund procedure set forth in § 7-38 — 40(A)(1), N.M.S.A.1978 of the Property Tax Act does not apply to exemption questions; that its property is exempt under-Article VIII, § 3 of the New Mexico Constitution, inasmuch as the Constitution does not provide that the property shall be exempt from taxation if the owner satisfies statutory and regulatory requirements of the Property Tax Act. For these reasons, Lovelace sued in declaratory judgment and sought equitable relief.
Section 7-38 — 40(A)(1) reads in pertinent part:
A. Claims for refund shall be filed by the property owner as a civil action in the district court for the county in which the valuation was determined * * *. Claims shall:
(1) be filed * * * against the county as party defendant if the property was valued by the assessor and shall be filed no later than December 15 of the year in which the first installment of the property tax for which a claim for refund is made is due. [Emphasis added.]
This limitation period is mandatory. Under this section, a refund for 1976 property taxes had to be filed by December 15, 1976. The Lovelace complaint was filed December 14, 1977, a year late. Under this section,the failure to timely file a claim for refund of ad valorem taxes is fatal. Dale Bellamah Land Co. v. Bernalillo County, 92 N.M. 368, 588 P.2d 1043 (Ct.App.1978).
However, the provisions of the Property Tax Code deals with protest and refund procedures with respect to valuation questions. It does not apply to property that is exempt from taxation by reason of the protection given property owners by the Constitution. Section 7-38 — 40(A)(1) does not say that “every claim” or “all claims” for refund, including claims for refund based upon property heretofore exempt from taxation, shall be filed no later than December 15 of the year the first installment is due. This section does not create an exclusive remedy for a property owner who seeks a refund based upon the exemption of its property from ad valorem taxes. Lovelace did have a remedy under the Declaratory Judgment Act.
Lovelace is not bound by the time period limitation set forth in § 7-38 — 40(A)(1). Its property was not subject to assessment for taxes in 1976 unless the assessor had prior thereto established that there was such a substantial change in the use of the property that it was removed from the charitable and educational purposes set forth in the Constitution. No such determination had been made. Property exempt from taxation in 1975 does not automatically change to non-exempt property in 1976. An arbitrary determination by the county assessor without a hearing would violate the Due Process Clause of the Constitution. Neither the assessor, the legislature nor the courts can efface the protection given property owners by the Constitution, as long as its property is held to be used for charitable and educational purposes.
The trial court concluded that Lovelace’s property “is and always has been used by plaintiff for charitable purposes and is therefore exempt from New Mexico property tax * *
The County has misinterpreted the position taken by Lovelace. It claims that Lovelace filed this action pursuant to § 7-38-40(A)(l) and now claims it does not apply. The County is mistaken. It has failed to meet the challenge extended by Lovelace. Section 7-38-40(A)(l) was not applicable and Lovelace did not pursue that remedy. Lovelace had no plain, speedy and adequate remedy at law. It had to seek the injunctive process. The legislature may not deprive the district court of the power to issue writs of injunction unless it provides an adequate remedy at law as a substitute. Lougee v. New Mexico Bureau of Revenue Commissioner, 42 N.M. 115, 76 P.2d 6 (1937). Section 7-38-40(A)(l) did not provide such a substitute.
The assessment of Lovelace’s property for taxation for the year 1976 was void ab initio.
The trial court should be affirmed on that portion of the judgment that relieved Lovelace’s property from taxation for the years 1977 and 1978 and thereafter and should be reversed on that portion of the judgment that held untimely Lovelace’s claim for refund of taxes paid for the year 1976.
The trial court should enter judgment that Lovelace’s property is exempt from taxation for the years 1976, 1977, 1978 and thereafter in the absence of any substantial change in the use of the property which removes it from the protection of Article VIII, § 3 of the New Mexico Constitution.