108 P.2d 590 | Wyo. | 1940
This is an action brought on June 17, 1939, by the Board of County Commissioners of Big Horn County against Bench Canal Drainage District, E.J. Goppert, Trustee, and East Emblem Drainage District, to foreclose a tax lien against the lands in controversy in favor of the county under the provisions of Chapter 84, Session Laws of 1935, which provides, in brief, for *267 the foreclosure of general tax liens in the manner of foreclosure of mortgages, and for sale of the property as under a mortgage foreclosure. Plaintiff claimed a lien for general taxes in the amount of $3951.92. The East Emblem Drainage District defaulted. The Bench Canal Drainage District claimed a lien by reason of special assessments in the district in the sum of $3277.85, and contended that this lien is of equal dignity with that for general taxes. The court entered a decree to the effect that the County has a paramount lien on the land in controversy in the sum of $3280.52, and that the defendant Bench Canal Drainage District has a lien on the land inferior to that of the plaintiff in the sum of $3277.85. Sale of the land to satisfy these liens in the order named was directed. Big Horn County also claimed a lien for $651.40 on account of weed control. The court decreed in its favor a lien for that sum, junior and inferior, however, to the lien of the drainage district. From the decree so entered, the defendants not defaulting have appealed. The point relating to the lien for weed control is not argued, and will not be mentioned any further.
The lien claimed by Big Horn County covers taxes for the years 1924 to 1938, both inclusive. It is stipulated by the parties herein, however, that no taxes were actually levied against the land in controversy for the years 1924, 1925, and 1926, and that the sum allowed for them by the court should be eliminated from the judgment; further, that the total liens of the county for the taxes levied against the land for the remaining years should be computed at the sum of $2087.41.
1. The appellants claim that the sum last mentioned should be further reduced by the sum of $680.18, by reason of the fact that the county is barred from claiming any lien for taxes due for the years 1927 and 1928, *268 in accordance with Section 115-2346, Rev. St. 1931, providing as follows:
"All taxes upon the assessment rolls and tax lists in any county or of any incorporated town or city in the state not collected and enforced for a period of ten years from the time that such taxes have been levied shall stand cancelled upon the books and shall thereafter be uncollectible."
Counsel for Big Horn County claims that this statute is in violation of Section 40, Article III, of the Constitution of this state, which provides as follows:
"No obligation or liability of any person, association or corporation held or owned by the state or any municipal corporation therein shall ever be exchanged, transferred, remitted, released or postponed or in any way diminished by the legislature, nor shall such liability or obligation be extinguished except by the payment thereof into the proper treasury."
Counsel for the county rely upon State v. Fischl,
"So, in this instance, if the city were required to sue thereafter within a prescribed time, the validity of the act would be beyond question."
One of the judges even dissented from the limited holding of the majority of the court, stating:
"The power of the legislature to levy and collect taxes necessarily carries with it the power to prescribe the mode and manner of collecting and the time within which the collection shall be made, and such power should not be frittered away by judicial construction."
A tax is generally not considered to be a debt in the ordinary meaning of that word. 61 C.J. 1051; 26 R.C.L. 25; Cooley, Taxation, (4th ed.) Sec. 22. In this state, no provision has been made, as has been made in a number of states, that a tax is a personal obligation of the party whose property is assessed for taxes. It cannot, accordingly, be said, at least in the strict sense, that there is an obligation or liability in this case on the part of the tax payer. The Constitution of this state does not make a tax a lien upon any property. It is made so under the statute. It is a general rule that taxes are not a lien unless made so by the constitution or statute. 61 C.J. 613. Furthermore, it is generally held that tax liens exist as long, and only as long, as the statute provides. 61 C.J. 942; Cooley, supra, Sec. 1239; McQuillan, Municipal Corporations (2nd ed.) Sec. 2261. It would seem, accordingly, that the statutes in this state, instead of providing as it does, that the lien shall be perpetual (Sec. 115-2303, Rev. St. 1931), might have provided that it should be a lien only for the period of 10 years. If so, it would follow as a corollary that the same provision can be made by way of a statute of limitations, as is done in our state by Sec. 115-2346, supra. In State v. Montoya, 32 N. Mex. 314,
2. The Drainage District further claims that its lien is of equal dignity with that of the lien of the general taxes, under the provisions of Section 122-886, Rev. St. 1931, which reads as follows:
"All assessments provided for in this article, together with all interest thereon, and all penalties for default in the payment of same, and all costs of collecting the same shall, from the date of the order of court confirming such assessments until paid, constitute a perpetual *271 lien in amount not in excess of the benefits severally assessed, upon all the land and other property against which such assessments shall be levied, as provided herein, to which only the lien of the state for general state, county, city, town, or school taxes, shall be paramount, and no sale of such property to enforce any general state, county, municipal, or school tax, or other lien shall extinguish the lien of such assessments."
The drainage district claims that the clause of Section 122-886, supra, stating that general taxes shall be paramount to drainage assessments is modified by the clause following it, and that the effect of the whole section is that the general taxes and the drainage lien are placed upon an equal footing.
We should mention the fact that the drainage assessments involved herein were made prior to the enactment of section 122-886, supra, which was in 1923. At the time of the issuance of the bonds herein, the law provided, as the law does now, that taxes upon real property are "made a perpetual lien thereon against all persons or corporations, except the United States and this state." Section 115-2303, Rev. St. 1931. The law relating to drainage districts in force at that time merely provided that assessments "shall be a lien upon the lands assessed until paid." Sec. 1059, Comp. St. 1920. It has been held that such a provision gives no priority over other liens. McQuillin, Municipal Corp., (2nd ed.) Sec. 2262; note 30 L.R.A.N.S. 763, 764. And it would seem to be clear under the rule hereinafter mentioned that in the face of such a provision the lien for general taxes must be considered superior. The drainage district, however, claims the benefit of the provision of the law of 1923. While we have doubts on that subject, we may concede that to be true for the purposes of this opinion, and determine whether or not the contention made can be upheld under that theory.
It appears to be the rule, generally recognized, that in the absence of constitutional provisions, the legislature *272
has plenary power in fixing the priority of tax liens, including the lien for special assessments. 61 C.J. 925; 25 R.C.L. 188. In Board v. State,
"It must be conceded that a general tax which has primarily for its object the support of the government whereby the government may exist and lives and property may be protected and the pursuit of happiness guaranteed is of greater dignity and more importance than a tax bill issued for public improvements."
In City of Walla Walla v. State,
"The general ad valorem tax upon real property lies at the foundation of the tax structure of the state and its paramount rank is in concept well-nigh traditional. *273 Such tax is imposed directly upon property and accepted from all owners thereof. It is levied annually at a regular time and operates uniformly according to fixed general rules. In reliance upon the comparative certainty of its collection, public officials administer the affairs of state. That this tax be promptly and fully collected is of supreme and vital importance to the people of the commonwealth."
In Hanson v. Burris,
We must test the statute in question in the light of the foregoing rule, which seems to have a sound basis, and no good reason has been pointed out why we should not adhere to it. It will be noted at once, that if the legislature intended to place a lien for drainage assessments and the lien for general taxes on an equal footing, it did not use very happy language. It would have been easy to have stated that they should be of equal dignity. In Waltom v. City of Portales, 42 N. Mex. 433,
Some of the cases holding that the lien for drainage or irrigation assessments are not extinguished by the sale of land for general taxes seem to be based on the holding that the bonds issued for such assessments are general obligations of the district. Among these cases are State ex rel. v. Irr. Dist.,
In the case of Town of Soluda v. Polk County,
"Assessments for construction, additional assessments, and assessments for repairs and interest thereon *279 shall be a first lien upon the lands assessed from the time of recording the order of confirmation of same in the office of the register of deeds of the county in which the lands are situated until paid, and shall take precedence over all other liens and mortgages whether accruing prior to the time of the filing of the petition under the drainage district law or not, excepting only liens for general taxes. * * * No tax deed shall cut off any drainage assessment nor shall any drainage assessment deed cut off the tax."
The statute, accordingly, is very similar to the statute in controversy in this case. The court, holding the lien for general taxes to be paramount, said in part as follows:
"We shall not attempt to review the authorities bearing upon this question, because in our view the lien for general taxes is of a distinctly higher order than the lien of any special assessment, and we should not construe any statute as giving precedence to the lien of any special assessment over the lien of general taxes in the absence of a plain legislative command. * * * The legislature was here dealing with priorities. It distinctly provided that the drainage assessments should not be a lien prior to the lien for general taxes. The plain inference is, and the proprieties as well as public policy, dictate that the drainage assessment is a lien subordinate to the lien for general taxes. We concede that the provision * * * that no tax shall cut of any drainage assessment nor shall any drainage assessment deed cut off any tax lends some force to the contention that it was the legislative purpose to make the liens co-equal, but in our view it amounts to nothing more than an ambiguity and does not constitute that plain legislative declaration which we consider necessary to subordinate the lien of general taxes."
In Idaho the Constitution provides that no county, city, town or any property therein should be released from the payment of taxes levied for state purposes. The statute provides that state, county, city and school taxes shall only be discharged by payment, cancellation or rebate. On the other hand, two sections of the statutes *280
provide that special assessments shall take precedence of all other liens. Another section provides that "all unpaid assessments and interest shall be and remain a lien on each lot or parcel of land * * * and such lien shall have priority over all other liens and incumbrances whatsoever." The court held that, notwithstanding these provisions in favor of special assessments, the lien for general taxes is superior to that of the former. Bosworth v. Anderson,
"Special assessments made and levied to defray the cost and expense of any work or service contemplated by the provisions of this article, and the cost of collection thereof, shall constitute a lien upon and against the property upon which such assessment is made and levied, from and after the date upon which the ordinance levying such assessment becomes effective, which lien shall be superior to the lien of any mortgage or other encumbrance, whether prior in time or not, except the lien of general taxes, and such lien shall continue until the tax is paid, notwithstanding any sale of the property for or on account of a general or special tax."
This statute, it may be noticed, is very similar to the provision of Section 122-886, Rev. St. 1931, upon which counsel for the drainage district rely, but it is not as positive as our statute in making the lien for general taxes paramount, and could very well be construed, as the minority of the court did, as providing that the liens should be equal. But the majority of the court held that the lien for general taxes is superior to the lien for special assessments. And if the opinion of the majority in that case is correct, we could not very well hold otherwise under a statute such as we have. See also Moe v. Brumfield,
3. Counsel for the drainage district pleaded that the bondholders, holding bonds of the district, are necessary parties herein, and he states in his brief that he called the attention of the trial court to that fact, but that the court ignored it. Unfortunately no further reference to the point is made in his brief. And counsel for the county is entirely silent thereon. In Hanson v. Burris, supra, and State ex rel Mallott v. Board of Commissioners of Cascade County, supra, which involve a question similar to that in this case, the contest was with the bondholders. These cases do not discuss as to whether or not it is necessary to make them parties in order to bind them, although it is apparent that it was deemed advisable to do so. In some cases it is held that bondholders will not be bound unless they are made parties. Cases in note 128 A.L.R. 392; Road Imp. Dist. v. Delinquent Bonds,
4. A brief was filed herein by Mr. L.A. Bowman as amicus curiae. He calls attention to the fact that in 1923, when Section 122-886, supra, was passed, the legislature also enacted Chapter 13 of the Session Laws of that year, providing that the state might invest the permanent school fund in drainage district and irrigation district bonds, and that at the present time the state has invested approximately two and one-quarter million dollars in such bonds. Prior to that year drainage district bonds were merely made a lien upon the lands which were assessed, as already stated. Counsel believes that Section 122-886, supra, was enacted partially for the purpose of making investments in drainage district bonds by the state more secure, and hence the liens for special assessments in drainage districts were made of equal dignity with the lien for general *284
taxes. But we cannot see that the enactment of Chapter 13, supra, can enlarge the meaning of the language used in Section 122-886, supra. See State v. Board of Commissioners,
The judgment of the district court is accordingly modified, reducing the amount of plaintiff's lien, as of the date of the judgment in the trial court, to the sum of $1507.23. As so modified, the judgment of the trial court is affirmed.
Modified and affirmed.
RINER, Ch. J., and KIMBALL, J., concur.