144 N.W. 734 | S.D. | 1913
Action to enjoin -issuance of tax deeds to county on certificates purporting to- be -issued upon b-icl-s made- by such -county. Plaintiff alleged, but -offered no -proof to sustain the allegation, that the assessments upon which the sales were made were excessive, unjust, unequal, -oppressive, and confiscatory when compared with the assessments of other .property. The 'court found -all the tax proceedings regular and refused the relief sought, which relief included the ascertainment of the just -tax. Many of the findings of the court are wholly unsupported by the evidence; ■bu-t the main facts are virtually undisputed, and- thereunder there are presented for our -consideration the following questions: (1) Is injunction a proper remedy under the facts pleaded? (2) Did appellant lose any right to relief by failure to pay into- court the amount of tax justfy -due? (3) Did -respondents have the right to introduce oral evidence, either to correct the assessor’s return, or to prove what should have appeared from such return-, -where no return was ever attached to the assessment roll ? (4) What is -the effect upon the validity of the assessment of the assessor’s failure
The Supreme Court of North Dakota held in Eaton v. Bennett, 10 N. D. 346, 87 N. W. 188, and cited’ a vast number of cases from various states in support thereof, that: “The rule that’man
We are not unmindful of the 'decision's o-f the Supreme Court of Wisconsin. In Wis. Cent. Ry. Co. v. Lincoln Co., 67 Wis. 478, 30 N. W. 619, referring -to the decision of the same court in Infield v. Marinette Co., 62 Wis. 532, 22 N. W. 705, the court says that in such case: “It was held that the tax certificates were not necessarily void in equity because of such ommission., and 'that, to entitle the plaintiff to relief, he must show that the -tax levied against his property was unequal and unjust, -and, as- a •condition of relief, he must offer to pay the sum as taxes which in justice and equity he ought to pay.” A careful reading -of the Fifield Case will show that the court did' not hold the certificates were not void. The court, in- its decision in- such- case, conceded that the failure to verify the assessment rolls- rendered the assessments invalid, but held: “This court has, through a long course of -decisions-, held that -the circuit -court could entertain an action in equity to- remove a cloud brought upon title to real estate by irregular, and therefore void, proceedings in the assessment and levy o-f taxes -or in the sale of the lands, -for the nonpayment thereof; but it has also uniformly held that in all -such- -cases-, unless it was clearly -shown that the illegal tax was also -un-equal, inequitable, and unjust, relief would only be -granted upon the conditioni -that the irregular and illegal tax -should' be first paid”
T-he above ruling has been followed by the Supreme Court
In Farrington v. New Eng. Inv. Co., 1 N. D. 102, 45 N. W. 191, it was said: “Under statutes of the -same import as ours, it has been repeatedly held that the -fact that no oath- was attached to or i-s returned with the -roll w-oul-d not warrant a court of equity in interfering in any manner with, the tax proceedings.”
Thus while in Eaton v. Bennett, supra, -the- Supreme Court of North Dakota holds- that -a failure to attach’-proper oath to return renders the assessment invalid, it is held -in -the Farrington Case that such invalidity is not sufficient ground1 for equitable relief.
5, 6, -and 7. What we have said above disposes of the questions 5. 6, and 7 above, because, even if the -assessments were invalid. for any-of die reasons stated, yet -appellant could not avail himself of such invalidity in this .action- without also, showing that the tax levied was unjust and inequitable. •
11 anti 12. Does -chapter 10, Daws 1909, apply to- certificate of tax -sale held- by a county? If so, can plaintiff plead it and rely upon it in this- action-? Chapter 10, Daws. 1909, provides a limitation o-f six years from date of certificate within which proceedings to procure tax deeds must be commenced. Certain of the certificates would be barred if the above law is held to- apply. It must lie 'borne in mind that, when a purchase is made at tax sale by any other than the county, the tax itself is -paid, a tax receipt issues, the state- and its several subdivisions -cease to- 'have any interest in the lien that is now vested in the purchaser. Such is also the case when a certificate held by the county is- assigned, the tax is paid, the interest of the sovereign -power ceases. When a purchase is made by the county, it is but a method of enforcing the payment o-f the tax, which tax remains unpaid until redemption is made, the certificate assigned, or the county takes -deed; in fact, under our present law the interest o-f the public (the state and its subdivisions) in the tax itself remains until the land is sold by the comity, even where -the co-unity -takes tax -deed. The county acts not only for itself in the furtherance -o-f a .public duty, but it is the agc-nt or trus-tee of the state, as well -a-s of -the political divisions lesser than itself, and, as such agent or -trustee, it is charged with a duty p-ub-lic -in nature and of the most vital import, to wit, -th-e collection of thbse revenues that are the very life bloo-d o-f organized society.
The following is the -rule -as applied to -municipal corporations : “As respects -all .public rights, or as respects property held for public u-s-e, -u-pon trusts, ¡municipal corporations are not within the -operation! -of the statuafe -o-f limitations.” Logan County v. City of Lincoln, 81 Ill. 156; Greenwood v. Town, of La Salle, 137 Ill. 225, 26 N: E. 1089. In- the latter -case the court, holding the statute di-d not a-p-ply, said-: “A to-wn under -our township organization system, is but a -civil division -oif a county'and exists as a municipal corporation merely for the purpose -of -carrying -on- th-e state government. It can- -only levy and collect taxes for .the purpose of carrying -on that subdivision -o-f su-ch government. It must be admitted that town taxes may be levied f-o-r th-e purposes in which th-e public generally are directly interested, -such ¡as 'constructing or repairing roads, bridges, o-r -causeways.’ -within- the town-. Section 40, art. 4, c. 139, Rev. St.; City of Alton v. Transportation Co., 12 Ill. 60 [52 Am. Dec. 479]. Other improvements may also he lawfully paid for out -of -a town tax, in which the •public at large have -as much interest as those residing within the boundaries of the township. We entertain n-o- -doubt that the right here sought to be enforced is of such a p-ublic nature that no statute of limitations -could be interposed against it.”
“Sec. 2203. The county treasurer of -each counity within this state is h-ereby authorized at all tax sales made under the laws of this state, in case there are no -either bidders offering the amount due, to bid off -all -or any real estate offered at -said sale for the amount of -taxes, penalty, interest and costs due -an-d unpaid thereon, in the name -of the county in which the -sale takes place, said county acquiring all the rights, both legal and equitable, that any purchaser c-o-uld acquire by reason of said purchase: Provided, that whenever -any county in this state shall -acquire an interest -in real -estate, or any rights with respect thereto, by reason*109 of the same having been bid off in the name of the county as herein provided, such real estate shall not be again advertised and sold for delinquent taxes so long as the county retains its interest in and rights to such real estate gained by reason of the same having been so bid off: And, provided, further, that all taxes subsequently accruing against said real estate, or that were unpaid1 at the time of such sale and lien thereon, but not included in stx-.h bid, shall be considered as ‘subsequent tax/ and before the county can make an assignment of such interest in and1 rights to said leal estate gained by reason of the same having been so- bid off, or before an assignment of the certificate of said sale is made, ad such taxes must be paid in ■ full, including .the amount for which such land was so bid off, unless a compromise thereof is made as permitted by law, in which case the amount at which such compromise is made must he paid.
“Sec. 2204. Whenever the county treasurer of any county shall bid off any real estate in the name of the county he shall make out a certificate of purchase to said county in .the same manner as required if sale had been made to any other person, which certificate shall be retained by the treasurer as provided by law; but no tax receipt shall be issued and no amount due the state or any other fund or costs or treasurer’s commission shall be paid by the county until redemption has been made from such sale or the time of redemption has expired, or until the interest of the countv has been assigned. The certificate or certificates so.issued to the county shall bear interest at the rate of twelve per cent per annum.
“Sec. 2205. In case the owner of said real estate, or any person having any legal or equitable interest therein-, is desirous of redeeming said real estate from1 said sale to the county, 'he shall have the right to do so at any time before tax deed shall be issued, by paying the amount of taxes with penalty and interest up- to the date of redemption, and the costs of advertising and selling the same; and upon the payment thereof the said treasurer is “hereby required to give -the person so redeeming a -certificate of redemption, and he shall at the same -time issue a tax receipt and duplicate for said taxes, penalty, interest and costs, which shall be entered upon his cash book as -other tax receipts. He shall a-ls-o mark upon the tax duplicate in his office opposite the des-crip*110 lion of said real estate -the word 'redeemed/ with date, and name of -person by whom redeemed.
“Se'c. 2206- If any person is desirous of purchasing the interest of said county in said real estate, acquired by reason- of said county treasurer buying the same for the county, he may -do so by -paying to the said treasurer the amount of the taxes, penalty, interest and costs of sale and transfer up to the date he so pays, and thereupon the said treasurer -shall issue a tax receipt and duplicate as provided- in the preceeding section and shall assign and deliver to said purchaser the certificate of purchase held by said county for said real estate, which assignment and transfer shall convey unto said purchaser all rights of said -county, 'both legal and equitable, in -and to said real estate as m-uch -so as if he had been the original purchaser at said tax -sale.
“Sec. 2207. All pieces or parcels of real property bid in-'by the -county under the provisions of this article- and not redeemed or assigned within two years from the. date of sale, shall, upon the treasurer giving the notice required by law, become absolute property of the county, and upon payment by -said 'county of the taxes due the various funds upon said sale, the treasurer shall issue a tax deed therefor ¡to the county in the same manner as to individual purchasers, and the county may sell and con-ve}»- said real estate in such manner as is now or may hereafter he provided by law for selling of real estate, and the proceeds of such sale shall he placed to the credit of the county general fund.
“Sec. 2208. The -owner or occupant of any land sold for taxes, or any -other person-, may 'redeem the same at any time within two years after the date of such sale, or at any time -before the execution of a deed of conveyance thereof by ¡the county treasurer by paying the treasurer, for the us-e of the purchaser, his 'heirs or assigns, the sum mentioned in the certificate, and interest thereon at the rate at which the -land was sold, from the date of .purchase, together with all other -taxes 'subsequently paid, whether for any year -or years previous or subsequent to said sale, and interest ¡thereon at the same rate from the -date of s-uch payment; and the treasurer shall enter a memorandum of the redemption, :in th-e list of sales, and give a receipt therefor to the person redeeming the same, and file a duplicate of the same- with- the county auditor, as in*111 other eases, and hold the nmej' paid to tibe order of -the purchaser, his agent or attorney. * * *
“Sec. 2209. Any person cl-aimin'g a pant of any land sold for taxes whether the part be divided or undivided, may redeem the same on paying the purchase money on such portion or proportion as he may claim, together with the interest and subsequent taxes, and a statement of the portion redeemed shall be indorsed on the receipt or certificate of redemption and entered up in the treasurer's tax sale record.’'
The hot of 1901 ingrafted a new policy on the law of taxation in adding the two provisos now found in section 2203. Under the second proviso', the assignee of toe tax sale certificate is required to pay all “subsequent taxes.” Section 2203 declares that the county, as- a purchaser, 'acquires! “all 'tire rights, both, legal and equitable that any purchaser could acquire by reason of said purchase.” Section 2206 provides that any person desirous-of purchasing the interest of toe county in a tax sale certificate may do so by paying to the treasurer “toe amount of the taxes, penalty, interest and costs of toe sale and transfer up to toe date he so pays,” for which toe treasurer shall issue to him a tax receipt and duplicate as required by section 2205 and shall assign and deliver him the county’s certificate of sale “which assignment and transfer shall convey unto said purchaser all rights of said county, both legal and equitable, * * * as much so as if he bad been the original purchaser at said tax sale.” Certainly the “taxes, -penalty, interest,” required by section 2206, to be paid by an assignee of toe tax certificate, include the same items as the “taxes with pen alty and interest” mentioned in, section 2205; and no one would contend but that, since toe enactment of toe second proviso in section 2203, the amount necessary to procure an assignment under section 2206 -must be held to include toóse taxes specified and lefined in said second proviso' of section 2203, as ‘ ‘subsequent taxes therefore the word- “taxes,” as used in section 2205, must be construed to-include “subsequent taxes” as defined in section 220'’. .In view of the plain- legislative intent and toe results which would
It wall be seen that in section 2209, formerly section 130 of the 1897 law, the term “subsequent taxes” was used. This section is of value to us at this time as indicating what was understood by the term “subsequent tax” when used in toe amendment of 1901 to section 124 of the 1897 law, now section 2203. It seems clear that such term, as used' in toe 1897 law, had reference ■to taxes paid subsequent to. toe sale, and that in using such term in such amendment of 1901, toe Legislature intended that all taxes included in such term' should be considered for all purposes as though toey had been paid by the county and therefore to be treated toe same as taxes paid by an individual subsequent to a sale to him. Section 2209 clearly included redemptions of all kinds, both from sales to individuals and from sales to the county. If appellant's contention is sound, we 'have this- anomalous situa
[f ap-pel-lant’s contention is sound, there would also- be the following anomalous situation in the -cas-e of a tax sale to- the county where there had afterwards accrued -several yeans’ unpaid taxes for years subsequent to -that u-pon which -the sale is made: These “subsequent taxes” would stand unpaid -and be 1-iens against the land; if 'the -owner redeemed from the sale, these lat-er taxes would1 be enforceable and the -different political 'divisions wo-ul-d eventually get their share thereof; if the tax certificate was assigned then-, under the provisions of 'section 2203, the county would get in- all the “subsequent -taxes,” and the several political divisions would get their share of al-1 ’taxes that had been assessed and levied, including the taxes for which sale was made and all the “subsequent taxes;” but, if no redemption and -no- assignment were made, the county could- allow -enough time to- elap-se so that the accumulated -taxes, which under the express provisions o-f the statute -could stand -as liens- against the- land, would become so la-rge in -amount that no -o-ne would redeem the land or take an assignment of it'h-e county’s interest, and -the -c-ounty could then take a tax deed cutting -off all these -lat-er taxes, -thus preventing their -ever being enforced, -and, regardless of the f'ac-t that -the land might -be valuable enough to -pay nearly -or quite all these later taxes as well as- the tax upon which -the -sale was made, -could under -section 2207 be required to pay to- -the other political divisions o-n-ly their part o-f the tax upon which, -the- sale w-as made. The effect of -the second proviso in section 2203 is -ro cause a-11 other taxes, except the one upon which a sale -is made, -to be treated as having been paid- by th-e county as “'subsequent taxes;” and no redemption can be" made from s’uch sale without the- ¡payment of -such “subsequent taxes.”
“Sec. 2222. Whenever it appears -to the board of county commissioners that the full amounts -of any -taxes extended- and charged against any platted real property in any township, town, -ci-ty or village cannot be realized- by sale of the property or otherwise, the said board shall have the power to make- such settlement or compromise -of any taxes -for any year -or years' -a-s- in their judgment shall be for the best interests of the county; and in such settlement or -compromise tli-e -taxes abated sha-l-l be apportioned pro ra-ta among the several funds represented therein.
"Sec. 2223. Whenever taxes remain- unpaid on any real estate, and the -property shall -have -been offered for sale as required by Ae statutes two successive years and -received n-o- purchase: on account -of the depreciation of the value of said property o-r otherwise, the -county -commissioners of the -county in which- the property is situated shall have the power to- compromise with- the owners thereof by abating a portion of the delinquent taxes -and penalty on said! property.
“Sec. 2224. The board of -county commissioners of the several counties of -the State of South Dakota are hereby empowered, as -a means of relief, to rebate in- whole o-r in part the taxes' of any person whose buildings, stock, or -other property has been destroyed by fire, cyclone or other unavoidable casualty: Provided the loss for which said rebate is allowed shall 'be such only asvis not covered by insurance.”
There i-s no pretext that appellant has any right t'o- an abatement -of his taxes under the provisions of these sections. If the county commissioners have abated or compromised the taxes of other tax payers, when not authorized- so to- -d-o- by one o-f -these sections, the proper remedy for the wrong -done appellant and other taxpayers whose -t-ax-es have not been so abated lies- n-ot in
PORREY, J., di-s-senting.