300 N.W. 582 | Neb. | 1941
This is a tax lien foreclosure action brought by Drainage District No. 1 of Lincoln county, Nebraska. The transcript filed herein, prepared under direction of appellant, contains the following: (1) The petition of the Drainage District as filed in the district court for Lincoln county, Nebraska, on January 5, 1940, which sets forth four separate causes of action, upon separate county treasurer’s certificates of tax sales; (2) a petition of intervention and cross-petition of the Suburban Irrigation District filed in this cause on February 3, 1940; (3) a supplemental petition in the first cause of action filed on March 12, 1940; (4) a dismissal of its third and fourth causes of action filed by plaintiff on March 15, 1940; (5) the Suburban Irrigation District’s answer to the supplemental petition filed herein by plaintiff, and also its “supplemental cross-petition;” (6) the final decree; (7) notice of appeal; (8) bond for costs for appeal. It thus appears in the terms of the final decree that the issues tendered in the first separate cause of action set forth in plaintiff’s original petition as amended by its supplemental petition, and as set out in the second separate cause of action, were the sole subjects of the trial court’s consideration. In its first cause of action the plaintiff sought a foreclosure of a county treasurer’s tax sale certificate covering the NE14 of section 28, township 14 north, range 31 west of the 6th P. M. In its second cause of action plaintiff prayed for the foreclosure of a county
Intervention was unknown at common law and equity, and is a creature of statute. It is ancillary and supplemental to existing litigation and is regarded as collateral or accessory to the principal action. 47 C. J. 94.
“It is an action within an action, and being ancillary in nature, partakes of the character of the subject-matter of the main action, regardless of the character of its own subject-matter.” 14 Standard Ency. of Procedure, 288.
In the consideration of this subject it must ever be remembered that “No rule is better settled or more essential to the rights of parties litigant than that every person is entitled to access to courts of justice without interference from persons who have no interest in the matters in litigation.” In re McClellan’s Estate, 27 S. Dak. 109, 129 N. W. 1037.
Under the terms „-of the Nebraska Statute (Comp. St. 1929, section 20-328) the intervener who has or claims an interest in . the matter in litigation may join either plaintiff or defendant, or he may oppose both when his interest requires it, but he cannot without consent of plaintiff substitute himself for the defendant. 47 C. J. 115; Clapp & Co. v. Phelps & Co., 19 La. Ann. 461, 92 Am. Dec. 545; 20 R. C. L. 682, sec. 20.
“A petition or complaint, or other pleading or application, by which a person seeks to intervene must show by proper averments that the petitioner has an interest which entitles him to intervene; and * * * should set forth his (applicant’s) interest in traversable form, and a mere denial of plaintiff’s right is not sufficient. * * * A petition or application should set forth facts and not mere conclusions. Thus a general averment to the effect that
We have heretofore briefly framed an applicable rule in this form: “An intervener must plead some interest in the subject-matter of the litigation; a mere denial of plaintiff’s right is insufficient.” Moline, Milburn & Stoddard Co. v. Hamilton, 56 Neb. 132, 76 N. W. 455. See, also, Parker v. City of Grand Island, 115 Neb. 892, 215 N. W. 127; State v. Hall, 125 Neb. 236, 249 N. W. 756; Geis v. Geis, 125 Neb. 394, 250 N. W. 252; Cornhusker Electric Co. v. City of Fairbury, 131 Neb. 888, 270 N. W. 482.
It is proper for the court to refuse to permit an intervener who has come in to defend the action to continue as a party where he has failed to sustain the material allegations of his complaint in intervention. Marston Co. v. Central Alaska Fisheries Co., 201 Cal. 715, 258 Pac. 933.
“In some jurisdictions the view has been taken that, while a person may intervene who has an interest in the controversy, he cannot intervene when he merely claims an interest in the thing which is the subject of the controversy. * * * The rule frequently stated is that the right or interest which will authorize a' third person to intervene must be of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation of the judgment.” 47 C. J. 101. See, also, Latham v. Chicago, B. & Q. R. Co., 100 Neb. 173, 158 N. W. 923.
In this jurisdiction we were early committed to the restricted rule that to entitle a party to intervene in an action he must have a direct interest in or lien upon the matter in controversy in the suit. A mere creditor, although he may have an indirect interest in the result of the action, has no right to intervene therein. Kansas & C. P. R. Co. v. Fitzgerald, 33 Neb. 137, 49 N. W. 1100; Deere, Wells & Co. v. Eagle Mfg. Co., 49 Neb. 385, 68 N. W. 504; Latham v. Chicago, B. & Q. R. Co., 100 Neb. 173, 158 N. W. 923; State v. Hall, 125 Neb. 236, 249 N. W. 756;
In line with the principles announced in the foregoing cases, and as a definite application thereof, we are also committed to the doctrine that “A third party claiming an interest in or lien on property upon which an attachment has been levied cannot intervene in the attachment suit to question the grounds for the issuance of the writ.” Danker v. Jacobs, 79 Neb. 435, 112 N. W. 579. This principle so announced is, in effect, modified in Geis v. Geis, 125 Neb. 394, 250 N. W. 252, only to the extent that “Writs of attachment having been levied in different actions on the same property, the plaintiff in the later case may intervene in the earlier case on proper showing, not to defend the principal action or to move to discharge the attachment, but to have the relative priority of the levies adjudicated.” In addition, chapter 100, Laws 1887 (the statutory source of all rights of interveners), by its title restricts statutory intervention by third parties to those “claiming an interest in the event of any suit pending or to be brought.” In this connection it will be remembered that any provision in a legislative bill which is not clearly expressed in its title cannot be enacted into law. Union P. R. Co. v. Sprague, 69 Neb. 48, 95 N. W. 46; Haverly v. State, 63 Neb. 83, 88 N. W. 171.
So, too, the term “event of any suit” must be taken to mean the “legal event” of any suit. Ward v. Mallinder, 5 East (Eng.) 489; Swinglehurst v. Altham, 3 Term Rep. (Eng.) 138.
“Acts of the legislature must be construed with reference to, and their scope may not be extended beyond, the limitations of their constitutional title.” Geis v. Geis, 125 Neb. 394, 250 N. W. 252.
This necessary limitation as the scope of “interest” justifying or authorizing intervention is operative irrespective of the rights and claims involved, or the nature of the suit in which the question may arise.
Also, in view of the relation of the parties, the following
Even if the petitioner be permitted to intervene the rule appears to be that “An intervener must take the suit as he finds it, and is bound by the previous proceedings in the case. Consequently he cannot complain of the form of the action, or of informalities or defects in the proceedings between the original parties.” 14 Standard Ency. of Procedure, 330.
It may be conceded that the provisions of our Civil Code do not contemplate intervention by leave of court first obtained. It is ordinarily a matter of right, and not of permission. Nevertheless, the question whether pleadings or pleadings and proof establish that the party seeking to intervene has an actual interest in the subject of the controversy entitling him to participate therein to the extent of the interest possessed by him is a necessary preliminary question for the trial court’s decision and is determinable when the action is finally decided. State v. Holmes, 60 Neb. 39, 82 N. W. 109; Comp. St. 1929, sec. 20-329.
At the final hearing in this case relative to the intervention sought by the Suburban Irrigation District, the final decree recites, as to the first cause of action, that the trial court “finds generally against the interveners upon the allegations of their petition of intervention and answer as filed in said proceedings, and finds that the petition of
Bearing in mind the limitation which our public policy as evidenced by our statutes imposes upon the right of intervention, we now address ourselves to a consideration of the specific claims presented by this appeal, prosecuted not from the disposition of the main case, but from the determination of the ancillary, collateral and accessory proceeding presented by the intervener.
As a basis of appellant’s proceeding here presented, it claims that the case of City of McCook v. Johnson, 135 Neb. 270, 281 N. W. 69, was wrongly decided; that the doctrine of “trusteeship” announced therein is mere dictum; that there are no authorities to sustain it; that therefore the foreclosure proceedings by Drainage District No. 1 in the instant case (there having- been no actual payment of money by such district at or prior to the time the certificates of tax sale were received by it) are wholly without authority of law; that section 77-2009, Comp. St. 1929, embraces all existing authority in Nebraska as to purchase of tax liens from county treasurers without payment in money of the tax lien embraced in the certificate of tax sale issued, and by its terms such authority is limited to county boards; that under section 77-2009 it is essential that drainage districts- pay the moneys due on certificates of tax sale to become owners thereof and to be subrogated to all rights of the county, state and other legal subdivisions of the state to enforce its taxes under section 77-2041, Comp. St. 1929; that section 77-2010 provides for sale of
A careful reading of appellant’s brief, and due consideration of the cases cited and statutory provisions referred to therein, do not convince us of the logic of its argument, of the proper interpretation of the authorities on which it relies, and of the correctness of its final conclusions on the subject here in dispute.
It is to be noted that the sections here under consideration were all originally enacted as parts of “An Act to provide a system of public revenue,” etc., duly adopted in 1903. Laws 1903, ch. 73. It is a comprehensive revenue measure, with 244 sections, fully providing for the levy and collection of public taxes. Section 201 et seq. of this enactment (now carried as section 77-2009 et seq., Comp. St. 1929) largely relate to methods of collecting taxes where real estate has been offered for sale at public tax sale but remains unsold for want of bidders. As these several provisions referred to in appellant’s brief originate in a single enactment, and though certain of them have been amended, still their proper legal effect is to be determined by the general rule of statutory construction, which is: “In construing a statute, the legislative intention is to be determined from a general consideration of the whole act with reference to the subject-matter to which it applies and the
The principles announced in the following authorities are applicable to the instant case:
“In determining the intention of the legislature, all provisions of the statute bearing upon the point in dispute should be taken into consideration and given due weight.” City of Lincoln v. Janesch, 63 Neb. 707, 89 N. W. 280. See, also, State v. City of Lincoln, 101 Neb. 57, 162 N. W. 138; Chicago, B. & Q. R. Co. v. School District, 110 Neb. 459, 194 N. W. 479.
In construing provisions of the revenue law of the state, all parts of it must be construed together. Courtright v. Dodge County, 94 Neb. 669, 144 N. W. 241.
“In construing a statute, an imperative rule is that effect, if possible, must be given to every clause and part of the statute.” Mills v. Bundy, 105 Neb. 470, 181 N. W. 184. See, also, Thomas v. Rasmussen, 106 Neb. 442, 447, 184 N. W. 104.
The legislation here involved is not recent. All the provisions of our statutes on which the intervener relies were originally enacted as parts- of chapter 73, Laws 1903, which constituted the general revenue law of that year. In the' consideration of these sections as they now appear in the Compiled Statutes of this state, they müst be read in connection with the context in which found, the paragraphs to which they are related, their historical development, and as constituent parts of one complete enactment, and thus being within the purview of the rules of construction already quoted.
Section 201 of the 1903 act, and unamended, now appears as section 77-2009, Comp. St. 1929, and authorizes the “purchase for the use and benefit, and in the name of the county,” of any real estate advertised and offered for sale (for taxes) 'when the same remains unsold for want of bidders, etc. It will be noted that the powers conferred
Section 202 of this act of 1903 expressly provided: “Whenever any real estate subject to sale for taxes shall be within the corporate limits of any city or village, such city or village shall have the same power to purchase said real estate, and in like manner as the county board may purchase as specified in the preceding section. * * * No such sale shall be made to any city or village by the county treasurer when such lands have been previously sold to the county, but in any such case the city or village may purchase the tax certificate held by the county.” In its amended form section 202 now appears as section 77-2010, Comp. St. 1929. Since its original enactment such section 202 has been twice amended, but the right and power of the city and village to purchase real estate at tax sales for the use and benefit and in the name of the city or village is still expressly perpetuated as fully and completely as originally conferred. Matters of detail and administration have been added to the original section without in any manner impairing the substantial powers originally conferred. In addition, it will be noted that by amendment there was added to the governmental agencies empowered to purchase in the same manner as cities and villages, “irrigation districts” and “drainage districts.”
Section 203, as originally enacted in 1903, has not been substantially amended, and now appears as section 77-2011, Comp. St. 1929. It provides: “Whenever real estate is purchased by a county board, or by the city or village treasurer, the county treasurer shall not be required to account to the state treasurer, or to any person, for the amount of taxes due, until the county board or city or village authorities have sold the certificate or certificates of purchase of such real estate, or until, by redemption or foreclosure proceedings, he shall have received the money thereon.”
Section 232 of the 1903 act was not amended and now appears as section 77-2040, and authorizes the institution of foreclosure action “Whenever the county board of any county, or the proper authorities of any city or village, or any person, shall have purchased any real estate for delinquent taxes of any kind, or become the owner by assignment of any tax sale certificates or tax deed, such county, city, village or person shall be deemed to be the assignee and owner of all the liens for taxes of the state, county, city, village, school district, town and other municipal subdivisions for which such tract or lot is sold,” and as such “owner” is authorized to prosecute the tax foreclosure proceeding.
There is no specific requirement in this section, as contended for by appellant, that limits the city or village entitled to take advantage of this provision to one who has “paid money to the county treasurer” for the tax lien sought to be enforced. It must be read in connection with sections 77-2010 and 77-2011 which contemplate that the city “shall purchase such real estate” for taxes without payment of money. Obviously such a purchaser is clearly embraced within the terms of section 77-2040,. and indeed such must be the construction adopted if the provision here under consideration be construed as part of the act of 1903 considered as an entirety.
Following section 77-2040 we find section 77-2041 which regulates the proceedings of foreclosure of certificates of
With reference to the addition of “drainage districts” to the political organizations entitled to take advantage of the statutory provisions under consideration, it is to be observed that it was accomplished by an amendatory act duly passed and approved. We are committed to the rule: “The section of an act properly amended should be construed precisely as though it had been originally enacted in its amended form.” State v. Hevelone, 92 Neb. 748, 139 N. W. 636. See, also, State v. Coupe, 91 Neb. 463, 136 N. W. 41; First Trust Co. v. Smith, 134 Neb. 84, 277 N. W. 762.
In addition, by an act expressly made cumulative and enacted as chapter 228, Laws 1915, approved April 14, 1915, it was expressly provided: “That wherever power is now given by the revenue laws of this state to the County Treasurer of any County in this State to sell real estate, on which the taxes shall not have been paid as provided by law, it shall include the power to sell said real estate
It follows that the proceedings instituted and carried on in the instant case by Drainage District No. 1 were duly authorized by the legislation heretofore considered, and can afford no possible basis for intervention.
The intervener insists that taxes for the maintenance of the irrigation district are general taxes, and a first lien on the property in parity with all other taxes due the county and the state. The controlling statutory provisions are the following:
“All general taxes due the state and its governmental subdivisions shall be a first lien on the real estate on which levied, and takes priority over all other encumbrances and liens thereon.” Comp. St. 1929, sec. 77-206.
“All special assessments, regularly assessed and levied as provided by law, shall be a lien on the real estate on which assessed, but shall be subject to the general taxes mentioned in the last preceding section.” Comp. St. 1929, sec. 77-207.
Flansburg v. Shumway, 117 Neb. 125, 219 N. W. 956, is cited by appellant in support of its contention. The question presented in that case arises from the following
It is evident that this case cited, because of the diversity of facts involved, is not conclusive on the question here presented. The priority of the tax lien of the irrigation district must be determined by its inherent nature. Is it a “general tax” within the terms of the applicable statutes and within the limitations of the state Constitution authorizing its existence? The necessity of determining the inherent nature of assessments imposed by irrigation districts was presented to this court in Erickson v. Nine Mile Irrigation District, 109 Neb. 189, 190 N. W. 573. We there held: “Assessments made by an irrigation district to pay bonded debts and for the maintenance and operation of its canal or ditch are special assessments, even though made in proportion to valuation, and not by acreage or frontage.”
These assessments of the irrigation district, sustainable only under the Constitution as special assessments, are necessarily embraced in section 77-207, above quoted, and, as such, are a second lien and of equal priority with- the assessments of Drainage District No. 1, as determined by the district court.
From the entire record it appears that the intervener does not in any manner aver or rely upon collusion or fraud on the part of the parties to the lawsuit in which it seeks to become a party. In effect, it presents questions of law only as the foundation of its claim, and it must be admitted that plaintiff correctly pleads the several items of taxes as shown by the public records, for which recovery is sought, both as to items in which the Suburban Irrigation District is the beneficiary as well as for itself and the other public agencies involved.
It is thought that in the foregoing discussion we have disposed of all questions properly raised by the record which in any manner legally affect the right of the Suburban Irrigation District to intervene in the instant case.
True, the questions as to the necessity of plaintiff including in its proceedings all subsequent assessments and taxes levied or assessed upon the premises, its right to have a statutory attorney fee taxed in its behalf, the effect of the correction of the assessment of the northeast quarter according to the fact by adding to the assessable valuation the value of certain improvements actually a part thereof but by mistake assessed elsewhere, the effect of the refinancing by Drainage District No. 1 of its outstanding bond indebtedness, while deemed to have been properly disposed of by the trial court’s decree, are not specifically determined in this opinion, but they are all questions which are for consideration in the main case and form no proper part of this ancillary proceeding. For, if these questions be decided adversely to the contention of plaintiff, the amount
While these questions seem to have been properly determined by the district court, they are not properly a part of this appeal, and are not at this time for decision or final review by this court. To the extent of their merits, if any merit they possess, they relate solely to plaintiff’s case, not to intervener’s proceeding. While in no way decisive of the matter, the intervener’s pleadings contain no allegation that the proceeds of this property in suit will be insufficient to discharge necessary costs and all liens against it. The controlling principle invoked by the instant situation is: “The decision as to the right to intervene ordinarily does not turn on the question as to the merits of plaintiff’s case.” 47 C. J. 96. “Where, however, the person who intervenes, or who seeks to intervene, does not bring himself within the terms of the applicable statutes, or within the rules of law defining the right to intervene, intervention is not permissible.” 47 C. J. 106.
When the Suburban Irrigation District was properly denied the right to intervene in these proceedings, it must be deemed to be a stranger to the proceeding^ without power to contest the right of plaintiff to recover or otherwise protect the rights of others. 47 C. J. 107.
In addition, in consideration of the authorities heretofore cited in connection with the record before us, in every step of this proceeding the Suburban Irrigation District has been lawfully represented by a statutory trustee, Drainage District No. 1, whose good faith and honesty in the entire transaction is unquestioned. Nor are there any charges of fraud or collusion against it made or established, and neither is the claim made by any one that such trustee within its statutory sphere will not act in good faith for the protection of all interests represented by it. It is deemed that, under the circumstances involved in this case, the fact of lawful representation would alone require the denial of intervener’s application. In view of the entire
Affirmed.