74 P.2d 427 | Mont. | 1937
This is an appeal from a judgment of the district court of Chouteau County, approving the action of the board of county commissioners of that county in disallowing a claim for refund of certain taxes paid by the appellant to the county. The cause was submitted to the lower court upon an agreed statement of facts.
It appears from this statement that originally a quarter[1] section of land situated in that county was school land, the property of the state of Montana. Prior to the first Monday in March, 1927, the state sold this land to Luther Winther, and issued a certificate of purchase to him, which required the making of annual payments over a period of years. He having failed to make his payments as agreed, the commissioner of state lands on April 4, 1935, canceled such certificate. Notice of this action was received by the county assessor of Chouteau County and, presumably, was received by the county treasurer. This notice directed the county treasurer to cancel any assessments for the current year, as well as all unpaid taxes against the land for the current year and all prior years. The treasurer made no entries on his records in accordance with this notice. Taxes were levied against the land for the years 1927 to 1935, inclusive, which the purchaser failed to pay. The land was sold for taxes for the year 1927, and the county became the purchaser *580 at the tax sale in January, 1928, and received the tax sale certificate.
About the first of December, 1935, Christofferson called at the office of the county treasurer and inquired of the deputy then in charge of the office, as to whether he could secure an assignment of the tax sale certificate, and thereafter a tax deed, to certain lands in the section where the quarter section is located. The deputy informed him that the land concerning which he made inquiry was state land, but that the quarter section in question was subject to tax deed, and that he could purchase the tax sale certificate and apply for a tax deed. Christofferson, being informed that the amount necessary to purchase the quarter section was the sum of $358.67, and relying upon the statement of the deputy treasurer, paid this sum and requested the treasurer to assign the outstanding tax sale certificate to him. The treasurer accepted the money and later delivered to him the assignment of the certificate, together with the tax receipts for the subsequent delinquent taxes. Christofferson took some steps to institute proceedings to secure a tax deed. Upon investigation he discovered that the land in question was state land. The certificate of purchase had been canceled and the county treasurer was without authority to issue the deed. He then filed his verified claim with the board of county commissioners, seeking a refund of the money paid by him. The claim was disallowed by the board. Appeal was perfected to the district court from the disallowance of this claim. The district court affirmed the decision of the board. Error is assigned upon the action of the trial court in making and entering its judgment affirming the decision of the board.
It is the contention of the claimant that he was entitled to a refund of this money under the provisions of section 2222, Revised Codes, providing as follows: "Any taxes, per centum, and costs paid more than once or erroneously or illegally collected, may, by order of the board of county commissioners, be refunded by the county treasurer, and the state's portion of such tax, percentage, and costs must be refunded to the county, and *581 the state auditor must draw his warrant therefore, in favor of the county."
Counsel for the board argue that under this statute, as construed by decisions of this court, the claimant is not entitled to any relief.
In the case of First Nat. Bank v. Sanders County, 85 Mont.[2] 450,
In the case of Williams v. Harvey,
A careful reading of these two previous decisions reveals that the court nowhere discussed or referred to taxes erroneously collected, as distinguished from taxes illegally collected, unless we assume that the two terms in the statute are entirely synonymous. Therefore this court in the Williams Case, in summarizing the holding in the previous cases that it was there decided that the statute was repealed as to taxes erroneously collected, made this statement inadvertently.
In the case of Ford v. McGregor,
The South Dakota court, in the case of Security Nat. Bank v.Twinde,
We conclude that, when the legislature used the words "erroneously collected" and "illegally collected," that body recognized a distinction between them, and what this court has said in previous decisions, with reference to the repeal of the section with relation to taxes illegally paid, cannot be held to have declared the repeal of the section relating to taxes erroneously paid.
We will now proceed to determine the nature of these taxes in order to determine within which classification they properly fall. Section 1805.92, Revised Codes, provides that the interest of the purchaser in state lands is subject to taxation. The interest *583 of the state could not constitutionally be taxed. (Article XII, section 2, Constitution.) Section 1805.88 provides that a certificate of purchase of state lands may be canceled upon default. Thus it clearly appears that at the time these taxes were levied and assessed they were, so far as this record discloses, levied and assessed in accordance with the laws of the state. After their imposition, and long after they became delinquent, the state land commissioner canceled the certificate of purchase in accordance with the statute. Thereupon the interest of the purchaser in the land became extinguished, i.e., the interest on which these taxes were a lien; the interest being extinguished, the lien likewise ceased to exist.
While the notice from the state land commissioner directed the county treasurer to cancel the taxes theretofore imposed, and such is the wording of the statute (sec. 1805.94), we doubt the authority of the legislature to authorize the cancellation of taxes in the sense of releasing the obligation of the taxpayer to pay. But the legislature might well, in the circumstances, direct the county treasurer to cancel the taxes in so far as they constituted a record lien upon this property.
Taxes are not levied upon the property but upon the person;[3] while the property which the person owns is used to determine the amount of the tax he shall pay, it is after all the person who pays the tax; he is liable. The property, under our statutes, is security for the payment. (Ford Motor Co. v.Linnane,
It is argued, however, that even at the time the certificate[4, 5] of purchase was canceled, the rights under it had not been entirely extinguished, in that, under section 1805.89, after such cancellation the certificate is subject to reinstatement within 18 months. But the right to reinstatement is not absolute; it can only be made upon application by the original purchaser or his heirs, assigns, or devisees. The claimant here was not an assignee *584 of the purchaser; neither was he an heir or devisee, so far as the record discloses. Hence, he was not among those classes who might apply for reinstatement. Furthermore, under that section, the right of reinstatement is not one which the board is bound to grant, but may do so in its discretion, and, furthermore, the board is powerless to allow reinstatement in any event if the land has been sold in the meantime to another purchaser. Hence, in so far as this claimant was concerned, he had no right to succeed to the right of the purchaser of the state land to secure a reinstatement of the contract of purchase.
An assignee of a tax sale certificate acquires all of the right of the county therein acquired at such sale. (Sec. 2207, Rev. Codes.) The right which the county had acquired at the tax sale of these lands and premises, through the chain of events which we have set forth, amounted to exactly nothing at the time the assignment of the tax sale certificate was made, and, therefore, this claimant received nothing for the money paid to the county treasurer.
But it is argued on behalf of the board of county[6] commissioners that the payment by the claimant was voluntary, and that he cannot recover under the familiar rule that taxes voluntarily paid may not be recovered. Reliance is placed upon a number of California decisions, which are said to construe an identical statute of that state. For many years California had a similar statute, and some of their early decisions, when first read, appear to sustain this view. However, most of those on which counsel rely arose in a manner different from that in which this case arose.
In the cases of Loomis v. County of Los Angeles,
In the case of Younger v. Supervisors of Santa CruzCounty,
In Pacific Coast Co. v. Wells,
We are in accord with the rule above announced. The effect of this statute, in so far as it remains in force, is to avoid, where properly applicable, the harsh common-law rule recognized by the courts in proper cases prohibiting the recovery of a tax where voluntarily paid.
Let it be understood that we have not overlooked, and do not intend to depart from, the decision of this court declaring the portion of this section unconstitutional with reference to refunds by the state auditor to the county treasurer, under section 2222, Revised Codes, as decided in Yellowstone Packing P. Co. v. Hays,
The board of county commissioners was in error in disallowing the claim, and the trial court was likewise in error in affirming their conclusions. Accordingly, the judgment is reversed, with directions to the district court to enter a judgment reversing the decision of the board of county commissioners, and directing such board to proceed in accordance with the views herein expressed.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES STEWART, MORRIS and ANGSTMAN concur. *587