On Rehearing It is asserted with much earnestness by appellee that this court erred in the original opinion in holding that the certificates in question were invalid because the Town of Hot Springs had no authority to issue them, and cited Lanigan v. Gallup, 17 N.M. 627, 131 P. 997, 1002, as supporting this contention.
In the Lanigan case this court construed Sec. 12 of Art. 9 of the Constitution together with Sec. 13 of the same article, which is as follows: "No county, city, town or village shall ever become indebted to an amount in the aggregate, including existing indebtedness, exceeding four per centum on the value of the taxable property within such county, city, town or village, as shown by the last preceding assessment for state or county taxes; and all bonds or obligations issued in excess of such amount shall be void; provided, that any city, town or village may contract debts in excess of such limitation for the construction or purchase of a system for supplying water, or of a sewer system, for such city, town or village."
We held that, as there was no constitutional limitation on the amount the town *Page 327 of Gallup could become indebted for the purchase or construction of a water supply system as provided in Sec. 13 of Art. 9, necessarily the limitation on tax levies of 12 mills on the dollar, as provided by Sec. 12 of Art. 9, could not apply to a debt for the construction or purchase of a water supply or sewer system.
Chief Justice Roberts, speaking for the court, said among other things:
"The phraseology used in sections 12 and 13, supra, is practically the same as that found in section 8 of article 11 of the Colorado Constitution. The provisions of sections 12 and 13 of article 9 of the New Mexico Constitution are covered by the one section of the Colorado Constitution. In the Colorado Constitution the tax-levying power is fixed at twelve mills, and the limit of indebtedness at any one time is fixed at 3 per cent. of the valuation, etc. Provisions as to the election are identically the same. The exemption of the application of such limitations to water purposes in the Colorado Constitution is found in the following language:
"`Debts contracted for supplying water to such city or town are excepted from the operations of this section.'
"This language not only exempts such debts from the operation of the limitations as to the total amount and the 12-mill provision, but likewise exempts said debts from the operation of all the other provisions of the section, so that such debts may be contracted without the submission of the question to a vote of the people and the remaining safeguards thrown around the creation of other debts. The framers of the Constitution of New Mexico evidently intended to remove the limitation as to the amount of indebtedness that could be contracted for such purposes, and to leave the remainder of the section requiring a vote of the electors, etc., in full force."
In no place in the opinion is it suggested that all of Sec. 12 except the words "not exceeding twelve mills on the dollar" does not apply to debts contracted for the building or purchasing of water works and sewer systems. Regarding the object of requiring the ordinance and a limitation upon the tax levy, it was stated in that opinion: "* * * The carefully framed provision of section 12, requiring the ordinance whereby a debt is contracted by a municipality to `provide for the levy of a tax, not exceeding 12 mills on the dollar, * * * sufficient to pay the interest on, and extinguish the principal of, such debt,' was inserted with theobject of providing against the repudiation by a municipality ofthe indebtedness incurred by the ordinance, and to fix a limitation upon the amount of a single debt for purposes not excepted from its operation."
As we understand, the "safeguards" of Sec. 12 mentioned by Chief Justice Roberts are:
(1) That debts shall be contracted only by an irrepealable ordinance, etc.
(2) That said ordinance shall; (a) specify the purposes for which the funds to be raised shall be applied; (b) provide for the *Page 328 levy of a tax upon all taxable property, etc., sufficient to pay the interest on, and to extinguish the principal of, such debt within fifty years; (c) the tax shall not exceed 12 mills on the dollar.
(3) The proceeds of such tax shall be applied only to the payment of such interest and principal.
(4) No debt shall be created unless the question of incurring the same shall be submitted to a vote of the qualified electors, etc.
The effect of the Lanigan decision is, that only that part of sec. 12 which conflicts with the proviso of sec. 13 is inapplicable to a debt contracted for the purpose of building or purchasing sewer or water works systems; and that all other safe-guards apply to such debts. That was the effect of the following language: "The framers of the Constitution of New Mexico evidently intended to remove the limitation as to the amount of indebtedness that could be contracted for such purposes, and to leave the remainder of the section requiring avote of the electors, etc., in full force."
We hold, therefore, that Sec. 12 of art. 9 of the State Constitution provides that no debt in the constitutional sense should be incurred for any purpose except by an irrepealable ordinance specifying the purposes to which the funds to be raised shall be applied, and which shall provide for the levy of a tax upon all taxable property within such city, town, or village, sufficient to pay the interest on, and to extinguish the principal of, such debt within fifty years.
We stated in State v. Connelly, 39 N.M. 312, 46 P.2d 1097,1101: "We reach the same conclusion in the case before us. While it is true that in Seward v. Bowers [37 N.M. 385, 24 P.2d 253] we were concerned with the intended meaning of the word `debt' as found in article 9, § 12, while here it is its meaning as employed in section 8 of the same article, we are convinced that the term is used in the same sense in each section, viz., as comprehending a debt pledging for its repayment the general faith and credit of the state or municipality, as the case may be, and contemplating the levy of a general property tax as the source of funds with which to retire the same."
If there is a deficiency which, under the terms of the certificates, the town has bound itself to pay, the only possible means of payment is by funds secured from the levy of a general property tax. The certificates are therefore debts in the constitutional sense, regarding which the parties are in agreement.
But appellee contends that even though an irrepealable ordinance specifying the purposes of the debt in question is required, and that such ordinance must provide for the levy of a tax upon all taxable property of the town of Hot Springs, sufficient to pay the interest on, and to extinguish the principal of, such debt within fifty years, that the certificates are consistent with this provision of the Constitution. *Page 329 That, therefore, we erred in holding such tax levy could not be made consistently therewith, if the liability to pay is contingent upon circumstances that may never arise; or if they should arise, then the amount of the debt could not be determined until due and payable.
We cannot better state appellee's position on this question than by quoting the following excerpts from her brief: "* * * It would be quite feasible for the town at the time of issuing the sewer certificates to levy a tax sufficient to pay the entire amount of principal and interest within fifty years, provide that the taxes so collected be placed in a reserve or sinking fund, and disbursed to certificate holders in amounts sufficient to make good such deficiency as might result from the failure to collect special assessments if, as and when such deficiency might occur, the balance, if any, existing after all certificates have been paid to be used for ordinary governmental purposes of the town."
But said sec. 12 provides: "The proceeds of such tax shall be applied only to the payment of such interest and principal." The suggested tax would be unauthorized because, (a) levied to pay a debt that did not exist, and might never exist, and (b) the funds so obtained could not be used for general city purposes.
It is also suggested, "* * * It would seem, therefore, that the enabling ordinance might constitutionally provide that at the end of each year while the certificates are outstanding, the deficiency in collection of special assessments should be determined and a tax imposed at a sufficient rate to make good such deficiency."
It is apparent that by the terms of the certificate the town is only secondarily liable thereon; that the "deficiency" mentioned is that which remains unpaid after all funds which could be obtained from the special assessments by collection, foreclosure or otherwise, had been applied to the payment of the debt. If the suggested action were taken the city would be annually taxed to pay a debt of the property owners, though there might not be a deficiency after the application of all assessments collectible to the debt. If a deficiency should ultimately appear, it would be after funds of the town had been applied to the debt.
A third suggestion of appellee is: "It would seem to us that the most reasonable and practicable method of providing for the levy of a tax would be to simply provide that when a deficiency occurs the amount of the deficiency should be included in the town's budget upon which the levy for municipal taxes is based. This in effect is done by providing that the deficiency shall be paid out of `general revenues.' The `general revenues' of a municipality are derived from the levy of taxes on property in the municipality. It follows, then, that the deficiency is to be paid from the proceeds of a tax levy and that in case of a deficiency a tax levy must be made. Why is is necessary to be any more explicit? What more does the Constitution require?" *Page 330
We stated in Seward v. Bowers, 37 N.M. 385, 24 P.2d 253, regarding such debts: "The idea of a `debt' in the constitutional sense is that an obligation has arisen out of contract, express or implied, which entitles the creditor unconditionally to receive from the debtor a sum of money, which the debtor is under a legal, equitable, or moral duty to pay without regard to anyfuture contingency." (Emphasis ours)
That is, that the amount of the debt necessarily must be "fixed, definite and certain," otherwise its payment could not be provided for by an ordinance "which shall provide for the levy of a tax * * * upon all taxable property * * * sufficient to pay the interest on, and to extinguish the principal of such debt within fifty years."
It is quite apparent that such holding would overrule Seward v. Bowers, supra. The liability of the town is conditioned upon their being a deficiency, and the duty and obligation of the town to pay any part of the debt depends upon that future contingency.
The obligation of appellant to pay the deficiency could not arise until after the certificates were due and the deficiency ascertained; and when ascertained the appellant would become liable to pay. But a tax could not be levied prior to the ascertainment of the deficiency, which would subject appellant to suit before means of payment could be obtained. Sec. 12 of Art. 9 of the Constitution provides in effect that funds must be obtained in the manner therein specified so that the debt can be paid when it becomes due.
We are satisfied that said Sec. 12 of Art. 9 inhibits cities, towns and villages from entering into contracts which would, or might, create obligations resting upon future contingencies, and the amount of which is not fixed, definite and certain at the time the contract is made; that is, which does not entitle "the creditor unconditionally to receive from the debtor a sum of money, which the debtor is under a legal, equitable, or moral duty to pay without regard to any future contingency." Seward v. Bowers, supra. We adhere to our original conclusion that the certificates are void as to appellant and the order of reversal will stand.
BICKLEY, C.J., and ZINN, SADLER, and MABRY, JJ., concur.