40 Minn. 512 | Minn. | 1889
This case is, except as to the description of the lands involved, precisely similar to the case of County of Brown v. Winona & St. Peter Land Co., 39 Minn. 380, (40 N. W. Rep. 166,) (decided at the present term.) The decision in this case, of course, follows the decision in that. The court below will therefore ascer
ON REARGUMENT.
These proceedings, which were certified to this court pursuant to Gen. St. 1878, c. 11, § 80, having been inadvertently submitted at the late October term without argument, and some of the points intended to be raised not having been considered or decided, the decision filed therein (41 N. W. Rep. 465,) was vacated, and the case set for reargument at the present term. The lands in question are included in that part of the land grant of the Winona & St. Peter Railroad Company to which the “ Barney party” and their successor in interest, the Winona & St. Peter Land Company, was entitled under the agreement of October 31,1867, (Ex. W,) already several times before this court. These lands were conveyed from time to time (beginning with the year 1869) by the state to the railroad company, in which the legal title remained until March, 1887, although the equitable title passed immediately, under the agreement referred to, to the Barneys or their successor. None of the lands were assessed or any steps taken to enforce any taxes against them until 1886, when, in pursuance of the provisions of Gen. St. 1878, c. 11, § 113, as amended by Laws 1881, c. 5, and Laws 1885, c. 2, § 23, the county auditor entered them upon the assessment and tax books, assessed them, and extended taxes against them, on the tax-list for the current year, for each year subsequent to the dates when the lands were conveyed by the state to the railway company, and included in the amount of such taxes interest thereon from the time they would have become delinquent had they been assessed in the proper years. The taxes remaining unpaid and having become delinquent, these proceedings were instituted in January, 1888, to enforce collection by obtaining judgment against the lands. That these lands became taxable immediately upon their conveyance by the state to the railroad company is no longer an open question in this court. State v. Winona & St. Peter R. Co., 21 Minn. 472; County of Brown v. Winona & St. Peter Land Co., 38 Minn. 397, (37 N. W. Rep. 949;) County of Brown v. Wi
1. The burden of appellant’s argument in support of the first proposition seems to be that the legislature has no' power to authorize a tax for past years upon property theretofore omitted, when all the purposes of taxation for such years have been fully subserved; that taxes can only be levied to defray the expenses of the state and local government; and tha.t if these back taxes are levied and collected, there is now no object to which they could be applied; that they would be a mere idle surplus in the treasury; that the fact that in past years lands have been omitted cannot be made the basis of present taxation. The grand fallacy in this argument is in assuming that statutes like the one under consideration are acts authorizing original taxation. The tax was a debt or liability which the land owed in the year when it ought to have been assessed. Such statutes are purely remedial in their nature, and only go to confirm preexisting rights by adding to the means of enforcing existing obligations. And it can hardly be necessary at this day to argue that wherever property has escaped payment of its share of the public burdens it is competent for the legislature to provide for its assessment or reassessment for back years, and for that purpose it may adopt any method which it might have originally adopted for the enforcement of the collection of taxes. There is no difference in principle between a case where property has escaped taxation by reason of its entire omission from the assessment-rolls and a case where it has escaped by reason of defects in attempted proceedings for the en
2. Appellant’s second point, to wit, that this statute violates section 7, art. 1, of the constitution, is predicated upon the assumption that it provides for the assessment' of these back taxes without notice to the property-owner, and without" giving him any opportunity of being heard in the matter. Without following counsel through their exhaustive arguments upon this point, it is sufficient to say that it seems to proceed upon what we consider two false assumptions, to wit: First, that in proceedings in the exercise of the taxing power the property-owner is entitled to notice and to be heard in each preliminary step in the proceedings, pari passu with their progress; and, second, that under the tax law (Gen. St. 1878, c. 11, §§ 75, 79) the defences which he may interpose by answer, when the state applies for judgment, are so restricted as not to include all the objections which go to the merits of the propeedings. Where, as in the present case, the tax is levied on property, not specifically, but according to its value, to be ascertained by some person appointed for that purpose, undoubtedly a party is entitled to notice and an opportunity to be heard; but we know of no ease where it was ever held that a party was entitled to notice of, and to be heard in, each step in tax proceedings as it is taken. We doubt whether any tax law ever provided for any such thing. The principle running through all the cases is that a law does not infringe upon the constitutional provision under consideration if the property-owner has an opportunity to question the validity or amount of the tax either before that amount is determined, or in subsequent proceedings for its enforcement. Whenever by law a tax is imposed upon property, and those laws provide for a mode of confirming or contesting it in the ordinary courts of justice, with such notice to the person or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law. Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation District, 111 U. S. 701, (4 Sup. Ct. Rep. 663.)
This right is ■ fully given under the sections of the tax law already referred to. Within 20 days after the last publication of the de
The appellant lays much stress upon the fact that in the ease of the assessment of “back taxes” the statute gives none of the opportunities for the correction of unjust or unequal valuations by local boards of equalization, which it furnishes in the case of original tax
The point is made that the act of 1881 provides no adequate means of making an assessment or valuation of property for the omitted years, and therefore it fails to satisfy the constitutional requirements that property shall be taxed according to its value, (article 9, § 3,) and that all taxes shall be as nearly equal as may be, and the valuation of all property on which taxes are levied equalized and uniform throughout the state, (article 9, § 1;) and considerable stress is laid upon the supposed difficulty in getting at the actual value of property at a date more or less remote in the past. It is true that the act in question merely appoints the county auditor the assessor, and makes it his duty to assess the property, without specifically providing on what basis he shall fix its valuation, or what means he shall adopt to ascertain it. But it is not to be assumed, for the purpose of invalidating the statute, that it contemplated or authorized the assessment upon an unconstitutional basis, as, for example, the value of the property to-day. On the contrary, it must be understood as providing for an assessment upon the only basis that could be lawfully adopted, to wit, the value of the property at the time the land should have been assessed. And while the law does not specifically provide what means the auditor shall take to ascertain that fact, yet, as it is made his duty to ascertain it, it is also impliedly his duty to adopt such means of doing so as are reasonably within his reach, and from these to exercise his best judgment. The difficulty in the way of arriving at an exactly accurate result on account of the lapse of time is no fatal objection to the statute. Uniformity as near as may be is all that the constitution requires. Moreover, if the auditor, either from mistake or negligence, makes an unfair or unequal assessment, the owner has an opportunity of being heard and having this corrected in the proceedings instituted to obtain judgment against the land, and this fact is also an answer to the suggestion, so frequently made by appellant, that the assessment is made arbitrarily
In their reply brief counsel advance a new point against the validity of the act. Briefly stated, it is this: Conceding that the opportunity to answer and be heard in the proceedings to obtain judgment against real property satisfies the constitutional requirement as to “due process of law,” yet the act in question provides for the assessment and taxation of both real and personal property, and, as it makes no -provision for the collection of such taxes, they can be collected, if at all, only under the provisions of the general tax law; that under that law (section 58, as amended in 1885) personal taxes become delinquent on March 1st, and are enforceable, after April 1st, by distress of property; that, as this is prior to any notice or opportunity to the tax-payer to be heard, therefore the act is void as to personal taxes, and, if so, the whole act is void, first, because its purposes are so connected that it cannot be presumed that the legislature would have passed it for the purpose of collecting taxes for “omitted” years on real property alone; and, second, to hold it valid as to taxes on realty, and not on personalty, would render it repugnant to the constitutional provisions requiring equality of taxation. Without admitting the correctness of the other postulates in this line of reasoning, we think the assumption is erroneous that these personal taxes could only be collected by proceedings under the general tax law. It will be observed that the objection suggested is not to the act of 1881, providing for the assessment of the taxes, but to the
3. Had the legislature the right, in the case of the assessment of taxes for past years, to include in and add to these taxes interest from the date when they would have become delinquent if they had been levied in the proper year ? We think not. To fender a person chargeable with interest there must be a promise, express or implied, to pay it, or some default of duty on his part in not sooner paying the money. Sibley v. County of Pine, 31 Minn. 201, (17 N. W. Rep. 337.) In a case like the present there is neither. If the law required a land-owner to list his property for taxation, his failure to do so, whereby it escaped payment of the tax at-the proper time, would constitute such a default of duty as would justify charging him with interest for the time during which the public was deprived of the use of the money. Or if the amount of the tax had been ascertained, so that he had an opportunity to pay it, but instead of doing so saw fit to defeat its present collection by interposing an objection on the ground of some defect or irregularity in the proceedings, and a reassessment thereby became necessary, we can see how it might be urged that he could be charged with interest during the time that the collection of the tax was postponed, for the tax-payer himself would be in a sense responsible for the delay. But where the land has been entirely omitted from the assessment-rolls the owner is not in default. He is not required to list his land. The neglect or omission is wholly that of the public officers. He has never had an opportunity to pay the tax, for the amount of it has never been ascertained. If, under such circumstances, in the absence of any default on his
4. The certificate of the trial judge does not show that any “penalties” were included in the judgment, but counsel have made and filed a stipulation to the effect that in the judgment against these lands there was included not only the taxes against them for each year, as claimed, and interest, as provided in the act of 1881, but also a penalty of 10 per cent, upon said taxes and interest, as accruing thereon June 1, 1887, as being delinquent, and also a further penalty of 5 per cent., as accruing January, 1888; and that these facts may be taken into consideration and passed upon by the court the same as if they appeared in the certificate of the district judge. It will be observed that these penalties, unlike those attempted to be included in the case of County of Brown v. Winona & St. Peter Land Co., 39 Minn. 380, are penalties which are assumed to have accrued (under the provisions of section 69 of the general tax law, as amended in 1885) after the taxes had been actually assessed in 1886, and became “delinquent” June 1, 1887. It is claimed that the act of 1881 gives no warrant for the exaction of “penalties,” and that the provisions of the general tax law referred to have no application to “omitted taxes.” It is also urged that the utmost power that the state can constitutionally exert is to impose penalties for non-payment of taxes validly assessed, from the time, and only from the time, when the same, after due notice to pay them, have become delinquent; that the first notice which the tax-payer has that “omitted” taxes have been assessed against his land is when the1 delinquent list is published
While conceding the force of these positions, we are not called upon to pass upon either of them in the present ease. One thing is very certain: that a penalty in any form cannot be imposed until a party is in default in some legal duty. A penalty for the non-payment of a tax cannot be imposed until the person has an opportunity to pay it, and fails to do so. What we have heretofore said regarding “interest” is equally applicable to penalties. Now, as the whole tax extended against a tract of land is an entirety, the owner cannot pay a part of it without paying the whole; and if a part of it is illegal, and he pays the whole, ordinarily it would be a voluntary payment, and he could not recover back the illegal part. Hence in such ease his only remedy is to wait until proceedings are commenced to enforce judgment against his land, and then defend against the illegal part of the tax; and until it is deducted by the judgment of the court he has had no opportunity to pay the valid part of the tax, and consequently has been guilty of no default. Therefore, whether it be a case of a “current” tax, or an “omitted” tax, if the party succeeds in his defence as to part of it as illegal, all the penalties on the whole tax previously imposed for its non-payment were unauthorized, and cannot be included in the judgment. This is precisely the present case. That part of the tax assessed and extended against the lands in 1886 as “back interest” was, as we have already decided, unauthorized and illegal. To that extent appellant had a valid defence to the tax, which it had a right to interpose, and in which it was entitled to succeed. Until the correct amount of the taxes had been determined by excluding this illegal addition, it had not been in default, and no penalties could be legally imposed.
5. The remaining question is whether the statute of limitations applies to proceedings, like the present, to enforce payment of delinquent taxes. It is elementary that time never runs against the state unless there is an express provision or necessary implication to that effect; but our statute provides “that the limitations prescribed for the com
That a tax is “a liability created by statute” we think admits of no doubt, either upon principle or authority. City of San Francisco v. Jones, 20 Fed. Rep. 188; City of San Francisco v. Luning, 73 Cal. 610, (15 Pac. Rep. 311;) State v. Yellow Jacket Silver Mining Co., 14 Nev. 220, 226. Therefore, if instead of these proceedings against the land the statute had, as in many jurisdictions, authorized a personal action against the owner, unquestionably it would have been an action upon “a liability created by statute,” and the six-years’ limitation would apply. The only question, then, is whether it makes any difference because the proceedings are against the land instead of against the owner. Does this fact so destroy thei| analogy to an action as to make the statute inapplicable? Statutes of limitation are statutes of repose, which tend to the peace of society, and it is a cardinal rule that they are to be construed liberally, so as to effectuate the intention of the legislature. It is also well settled that such statutes, though in terms applicable only to “actions, ” are to be applied as a rule for all proceedings that are analogous in their nature to actions, so as to make the right sought to be enforced, and not a form of procedure, the test as to whether or not the statute applies. Upon this principle they are held to apply to all claims which may be the subject of actions, however presented; also that they furnish a rule for cases analogous in their subject-matter, but for which a remedy unknown to the common law has been provided. They have also been applied by analogy to. proceedings in admiralty, to claims in bankruptcy or in probate court, although not within the strict letter of the statute. Hart’s Appeal, 32 Conn. 520, 540; Forster v. Cumberland Valley R. Co., 23 Pa. St. 371. The legislature having adopted the policy of making the statutes of limitation applicable to the state, we ought to give them as liberal construction against the state as against citizens. A tax
The record, as certified to us, does not furnish the data from which to determine what particular taxes were barred at the time of the commencement of these proceedings. The matter is therefore remanded to the district court, to amend or modify its judgment so as to exclude or deduct therefrom all interest which was included in the amount of taxes as assessed and extended against these lands in 1886, also all penalties, and also all taxes barred by the statute of limitations, according to the rule laid down in this opinion.
Rote. A motion by the plaintiff for a reargument was denied June 3, 1889.
On July 16, 1889, the decision in County of Brown v. Winona & St. Peter Land Co., (38 Minn. 397, 37 N. W. Rep. 949,) and the decision in County of Brown v. Winona & St. Peter Land Co., (39 Minn. 380, 40 N. W. Rep. 166,) in neither of which eases had any remittitur been issued, were modified so as to accord with the decision in this case.