96 N.W. 132 | N.D. | 1903
In this action it is sought to determine adverse claims to lots 17 and 18 of block Al, Northern Pacific addition to the-city of Fargo. The plaintiff alleges ownership of said lots, and
In the year 1$90, when 'lot 17 was first sold for the delinquent taxes thereon for the year 1889, section 72, c. 132, p. 404, of the revenue law of 1890, was in force, and provided as follows: “Such-certificate shall in all cases be prima facie evidence that all the requirements of the law with respect to the sale have been duly complied with, and that the grantee named therein is entitled to a deed, therefor after the time of redemption has expired.” It will be seen, that neither this section nor the revenue law of 1890 made any provision as to the issuing of deeds upon sales made pursuant thereto. In. March, 1891, the legislature, recognizing the omission by the legislature of 1890 to make any provision for issuing deeds under tax. sales made thereunder, enacted section 110, c. 100, p. 271, of the Laws of 1891, which is as follows: “Section 7. That the following-section be added to said chapter 132, to be known as section 110 ‘Section 110. At the expiration of the time for redemption of lands. sold for delinquent taxes, as provided in section 103 of chapter 132 of Laws of 1890, the county auditor of the county in which the sale of lands took place shall execute to the purchaser, his heirs or-assigns, in the name of the state, a deed of the land remaining unredeemed, which shall vest in the grantee an absolute estate in fee-simple in such land, subject, however, to all the claims which the-state may have thereon for taxes or other liens or incumbrances. Such deeds shall be issued by the county auditor under the seal of' the county, and shall be conclusive evidence of the truth of all the facts therein recited, and prima facie evidence of the regularity of' all the proceedings, from the valuation of the land by the assessor-up to -the execution of the deed. Such deed shall be substantially in the following form:! ” (Here follows the form of deed.) This, section supplemented the law of 1890, so far as the form and effect of deeds to be issued on sales under the law of 1890 were concerned», and fulfilled the obligation contained in the law of 1890 that purchasers were entitled to a deed. Before the law of 1890 was repealed, a deed had been issued for lot 17, sold in 1890.
In 1895, when the Rev. Code was enacted, section 72, c. 132, p. 404, of the Laws of 1890, and section 7, c. 100, p. 271, of the Laws, of 1891, were expressly repealed, and another revenue law was,.
“Section 1267. If no person shall redeem such lands within two years, at any time after the expiration thereof and on production of the certificate of purchase, the treasurer of the county in which the sale of such lands took place, shall execute to the purchaser, his heirs <or assigns, in the name of the state, a deed of the land remaining unredeemed, which shall vest in the grantee an absolute estate in fee simple in such land, subject, however, to all the claims which the state may have thereon for taxes, or other liens or incumbrances.
“Section 1268. Such deeds shall be executed by the county treasurer under his hand and the execution thereof shall be attested by' the county auditor with the county seal and such deed shall be conclusive evidence of the truth of a'll the facts therein recited and of the regularity of all of the proceedings, from the assessment and valuation of the land by the assessor up to the execution of the deed, .and such deed shall be substantially in the following form, or other equivalent form:” (Here follows form of deed.) Both of the sections quoted were expressly repealed in 1897.
The questions presented for determination may be summarized :as follows: (1) The effect upon the sales of 1891 and 1892 of the repeal in 1895 of section 72, c. 132, p. 404, of the revenue law of 1890, and the repeal of section 7, c. 100, p. 271 (being added as section 110 to the revenue law of 1890), of the revenue law of 1891; (2) the effect upon the sale of lot 17 in 1890 of the fact that- no provision was made in the 'law of 1890 as to what officer should issue tax deeds upon sales made pursuant thereto; (3) the effect of the 1896 deed of'lot 18 having been issued by the auditor, when that law provided for the issuance of deeds by the county treasurer; (4) whether said section 7, c. 100, p. 271, Laws 1891, added to the Laws of 1890 as section 110, and making tax deeds prima facie evidence of the regularity of all the proceedings from the valuation of the land by the assessor up to the execution of the deed, could be repealed by the legislature, so as to deprive grantees under the 'law of 1891 of the benefit of that law defining what effect such deeds were entitled to; (5) whether it is shown by the plaintiff that the deeds issued under the 1890 and 1891 laws are invalid by reason of
The appellant claims that inasmuch as the laws of 1890 and 1891, under which the deed to lot 17 was- issued, were repealed in 1895, the deed has no force as evidence that the tax proceedings were regular, and that the regularity of all acts of all of the taxing officers must be affirmatively established before the deed can be sustained, •or can cut off plaintiff’s right to the land. He claims that such repeal related solely to the remedy, and that the legislature has a right to change existing remedies, as such change involves a change -of the rules of evidence only. Such contention would not be disputed if the change referred to the remedy only, but if the change of remedy or change in the rules of evidence goes further in its results, and affects contract rights, such changes are inhibited. The legislature will not be permitted, under the guise of changing a remedy or a rule of evidence, to impair a vested right under an existing contract ; and the presumption that all requirements of law with respect to the sale had been complied with, raised by the delivery of the tax certificate, was raised in favor of the tax purchaser by the law in force at the time of his purchase. This presumption was perpetuated by the deed, was a vested matter of right, and could not be taken away by a repeal of these laws. Cooley on Const. Lim. 347. Speaking of section 1639 of the Compiled Laws of 1887, which was practically the same as the section under consideration, this court said in Roberts v. Bank, 8 N. D. 504, 79 N. W. Rep. 1049: “This statute entered into the contract of purchase, and became a part thereof.” In Smith v. Cleveland, 17 Wis. 573, that court said: '“This was a most material and important advantage to the purchaser, and could not have escaped his attention. It concerned the life and validity of the contract. Could the legislature afterwards step in and take it away, and thus remove the foundation of his right? Can the legislature say, as to contracts past and executed, that they shall mean one thing today and another tomorrow? That they shall have one construction at time of execution, and another afterwards ? ‘That the title of the purchaser by deed first indefeasible shall, after-wards be defeasible? If these things can be done, then certainly the protection afforded by the constitution to private rights is very .slight and inadequate. But, as has already been decided, the 'legislature is deprived of this power.” The following cases are also mithority for the same principle: Morgan v. Commissioners, 27 Kan.
The deed to lot 17 was actually delivered before the law under' which it was issued was repealed. Hence no question can arise; upon the validity of the deed to lot 17, so far as this point is concerned. The deed to lot 18 was not delivered until after the law under which it was issued was repealed. The Revised Codes of 1895-provided for issuing tax deeds by county treasurers only. The law under which these sales were made provided for issuing tax deeds-by auditors only. The deed to lot 18 was issued by the county auditor after the 1895 Code took effect. It is claimed that the issuing' of the deed by the auditor, and not by the treasurer, made the deed void on its face. This would be true if the auditor had no right to-issue it. The revenue law of 1895 is entirely prospective. It relates-solely to proceedings had under it. It makes no reference to past, sales, or to deeds upon past sales. The form of deed prescribed, in that law relates only to sales made thereunder, and is not adapted to the provisions of the 1891 law. The purchaser at the 1890 and 1891 sales was entitled to a deed from the state. The state had. obligated itself to give him one. It could not deprive.him of the right to one. It could not repeal the law under which he became entitled to a deed, without making provision in the new law for a. deed the equivalent in substantial matters to that to which he was-entitled under the law when the sales were made. The treasurer' not having any right to issue the deed under past sales, under the-laws of 1895, it must be held that any attempted repeal of the laws, of 1891 was inoperative, so far as sales that had occurred under the 1891 law were concerned. The repeal was operative only so far as the future was concerned. The deed having been issued by the auditor, and the law authorizing him to do so not having been repealed, so far as this case is concerned, the deed is not void on its. face. It needs no mention that the purchaser has no vested right' to a deed by a particular officer. ' It is his right to a' deed which was-impaired, if the enactment of this law of 1895 be held valid as a. repeal of the 1891 law. See also, Pounds v. Rogers, 52 Kan. 558, 35 Pac. 223, 39 Am. St. Rep. 360; Adams v. Beale, 19 Iowa 61; Garrett v. Wiggins (Ill.) 30 Am. Dec. 653; McCann v. Merriam, 11 Neb. 241, 9 N. W. Rep. 96, holding that the law in force at the; time of the sale governs as to the terms of the contract of sale.
It is next urged that neither of the deeds is admissible in evidence in the absence of an affirmative showing that a notice as to when the time for redemption would expire had been given by the publication of a notice to the person against whom the land was assessed prior to the issuing of the deed, as provided by section 103, c. 132, p. 414, of the revenue law of 1890. This section provides that the time for redemption shall not expire until sixty days after the service of such notice. It is therefore claimed that the deeds were issued before the time for redemption had expired, and are therefore void. Sec. 7, c. 100, p. 271, of the Laws of 1891, provides that deeds issued thereunder shall be prima facie evidence of the regularity of all the proceedings from the valuation of the land by the assessor up to the execution of the deed. These deeds recite that the time for redemption from the sale under which they were made had expired, but do not recite the fact of the service of such notice. The deeds are in the precise form prescribed by the Laws of 1891. The contention of the plaintiff is that a showing of compliance with the provisions as to the publication of this notice was an indispensable prerequisite to the production of the deeds in evidence. The defendants contend that the deed, of its own force, shows a compliance with the law requiring notice, by virtue of section 7, c. 100, p. 271, of the Laws of 1891, enacted as section 110 of the Laws of 1890, making the deed prima facie evidence of the regularity of all the proceedings prior thereto. Neither party has offered any proof to the effect that such notice was' published or was not published. The' question must therefore be determined on the deed and the statute quoted, prescribing what the deed shall be evidence of. Without the publication of such notice the time for redemption would not expire. Its service would cut off redemption after the deed issued. The notice is a requisite step between the sale and the deed. It does not go to the groundwork of the tax, but is a necessary condition precedent to the issuance of the deed. The legislature required this notice to be published by the auditor before issuing the deed. Without any proof on the subject, we deem it the better rule to hold that the officer performed his duty' and gave the notice. In this state there is a presumption that officers regularly perform their duty, in the absence of any showing to the contrary. Subdivision 15, section 5713a, Rev. Codes 1899. The recital of the
It is next contended that the sale was void for the reason that the tax list had no warrant attached to it, authdrizing and directing the treasurer to collect the taxes levied as required by the provisions of section 1596 of the Compiled Laws of 1881, and that the sale was void for the further reason that the tax list “contains no certificate * * * showing that it is a tax list, or that the taxes are correctly charged, * * * and that no such certificate or warrant is anywhere annexed or attached to this tax list for the year
It is next contended that the county commissioners failed to designate a newspaper in which to publish the delinquent tax lists for the years during which these taxes were levied. The contention is that, if there was any designation at all, it was the Fargo Republican that was designated, and that such designation was not a designation at all, as there was no newspaper in the city of Fargo at that time of that name; that there was a daily newspaper then published there as the Fargo Daily Republican, and a weekly newspaper as the Fargo Weekly Republican. It is shown in this case by the recitals of the deed that there was a publication of the delinquent tax lists for those years. The objection goes simply to the failure to designate by the county commissioners. The proof in support o£ this objection is the following extract from the proceedings of the county commissioners, in connection with the following certificate of the county auditor and the oral testimony of Mr Robinson, namely: “Upon motion the contract for publishing the delinquent tax list was awarded to the Fargo Republican at four cents per description, and a bond of four hundred dollars to be furnished for the faithful performance of the contract.” The certificate of the auditor attached thereto is as follows: “I * * * do hereby certify that the above is a true and correct transcript from the records of the county commissioners, so far as the same pertains to the resolutions designating a newspaper for the publication of the delinquent tax lists, * * * as the same remains of record in my office.” The certificate is not in such form as to negative the existence of other matters in the proceedings of the board that pertain to the designation of a newspaper for the purpose named. What pertains to a designation of a newspaper in which to publish a delinquent tax list is a question of law, depending for its answer upon the facts proven. It is the auditor’s conclusion that the above motion contains all that pertains to that question. It is not for him to determine the question. He does not certify that the portion of the record to which he certifies
It is next shown that the records of the hoard of county commissioners do not show that the county commissioners held sessions as a board of equalization in the years 1889 to 1895, inclusive. It is not claimed that the county commissioners did not meet and act as a board of equalization during these years. The contention is that the minutes of the board of county commissioners do not show
It is next claimed that the levies for the city of Fargo in 1889,1891, and 1892 are void, because not based on an estimate óf expenses or on a valid appropriation ordinance. This contention is based on section 922 of the Compiled Laws of 1887, which is as follows: “The'city council shall at the first regular meeting in- September or within ten. days thereafter levy a tax for general-purposes sufficient to meet the expenses of the year, based upon estimates furnished by the city auditor or a committee of the city council.” Counsel for appellant testified that he had examined the records of the city council, and that he found that “the records contain no estimate of expenses in connection with such tax levies, and no estimate of such expenses for any year from 1889 to 1895, inclusive, excepting such as is shown by the certified copies offered in evidence.” .In this case the records of the city" council were net produced when the witness testified as'to what they did not contain. Besides his own testimony, to substantiate this point the appellant’s attorney introduced in evidence a certificate of the county auditor, certifying to the correctness of certain copies of the proceedings of. the council. This certificate is to the effect that the foregoing copies are true and correct transcripts' of the record “of the city council of the city of Fargo, of the appropriation ordinance, and
It is further claimed that the tax proceedings subsequent to the levy, and the levy, are all void, for the reason that the state board of equalization levied the state tax by percentages instead of by specific amounts: This objection applies to the sale of lot 18 only, as the state levy of 1889 was made in specific amounts. Section 6, c. 100, p. 270, of the Laws of 1891, under which the levy affecting lot 18 was made, provides as follows: “The state tax shall be levied by the state board of equalization at their meeting in August of each year and the rate of such tax shall be certified by the state auditor to each county auditor on or before the fifteenth day of September annually. * * * Such levy shall be made in a specific amount and the rate shall be determined by the state auditor.” It is contended by the appellant that this provision of the law is mandatory, and imposes the duty upon the board to make the levy in specific amounts, and that the failure to do so renders the levy, and all subsequent proceedings based on the levy, void. The respondents contend that this provision is directory merely, and does not render the tax levy or subsequent proceedings void. It is a matter within legislative control to regulate the mode or method of making levies by boards or officers. The legislature may provide for a levy by mills, percentages, or in specific amounts. The levy
On the first argument of this case, in September, 1902, Chief' Justice Wallin was strongly of the opinion that the state levy was. invalid, and wrote a dissenting opinion. The court as now constituted, has, after an exhaustive argument upon this point on.’ rehearing, unanimously reached the conclusion that the objection, to the validity of the state tax levy cannot be sustained.
Appellant presents an affidavit, and on it bases a request that,, in case of a decision adverse to the plaintiff, the cause be remanded for another trial. The request is that he be allowed to present further testimony to show that no warrant was ever attached to the-tax list, and that no notice was published of the time when the right of redemption would expire. We have recently held, in Nichols v. Roberts (decided at this term), 96 N. W. 298, that matters extraneous to the record on appeal will not be considered in.determining-what disposition shall be made of cases appealed to. this court. There was ample opportunity in the court below to have presented the testi
The judgment is affirmed.