34 Wash. 434 | Wash. | 1904
Lead Opinion
This cause was once before in this court, as will be seen in Gove v. Tacoma, 26 Wash. 474, 67 Pac. 261. Prior to the other appeal, the trial court sustained a demurrer to the complaint, and entered judgment
Reference to the former opinion will disclose that the action is based upon the provisions of an alleged ordinance of the city of Tacoma, whereby the city undertook to reimburse purchasers of certificates at city tax sales, if it should develop that the certificates were illegally or erroneously issued. The ordinance is fully set forth in the former opinion, and we hereby refer thereto for its terms. The first assignment of error here is that the trial court erred in finding that the city passed the said ordinance, and that it became a valid law. Appellant correctly states that, if there is no law in the form of statute or ordinance which renders the city liable to refund the purchase money for these tax sale certificates, then the rule of caveat emptor applies, and the respondent has no remedy. When the cause was here before, the demurrer to the complaint admitted the allegations as to the existence of the ordinance, and the discussion of the case at that time was upon the assumption that such an ordinance in fact existed. Under the subsequent pleadings, however, the existence of the ordinance was put in issue.
It is contended that the evidence is insufficient to sustain the finding that the ordinance was passed by the city. In the first place, it is provided by § 1299, Bal. Oode, that all city ordinances shall be recorded in a book
By statute the mere ordinance record book was prima facie evidence, but this record was further fortified by the actual signatures thereon of the sworn officers of the city, who had signed it in accordance with directions of the charter. Respondent’s counsel observes in this connection that, when a record is thus fortified by the acts of sworn officers,' it would seem that nothing short of proof of actual fraud amounting to a criminal conspiracy could overcome the presumption that the ordinance was really passed. We are not now prepared to say that such may be the law; but it is sufficient to say that the signatures
The evidence offered by appellant is of a negative character. It is urged that, as the journal of the city council-proceedings fails- to show certain facts, it should be found that such facts did not exist. The journal shows, that an ordinance on the subject of which this one treats was introduced and read the first time; that the rules were suspended and it passed to a second reading, after which it was referred to the judiciary committee; that said committee reported favorably upon the ordinance, and that the report was adopted; that the ordinance then passed to a third reading, was amended in a particular specified, and, as amended, was passed. It is insisted that the journal entries are not sufficient to identify this ordinance as the one referred to in the entries. We think they are. It is not referred to by any number, it is true; but it was shown that it is not the custom of the city to give numbers to ordinances until after they have actually passed and been properly signed. The proper number of this ordinance does appear in the margin opposite the last journal entry upon the subject; but it appears that this was placed there by the clerk at a time after the record was made. In any event, the subject-matter of the journal entries and of the ordinance was the same; and it satisfactorily appears that no other ordinances have been introduced upon this subject.
The witness who testified in the case at bar was a member of the city council when this vote was taken. He testified that he knew that the ordinance passed the council, and that the vote was twelve for the ordinance and
We see no reason why the rule applied to the acts of boards of county commissioners, who are the acting functionaries of subordinate municipalities of the state, shall not apply with equal force to the acts of city councils, who represent municipalities of like character. We therefore think the court did not err in admitting and considering the evidence. The evidence of the witness effected little more than to make certain what was already reasonably certain from other proof, viz.: that the journal entries referred to the ordinance that was recorded and published, and that the statement in the journal — that the ordinance was passed — while technically the statement of a legal conclusion, was in reality the statement of a fact. For the
It is next assigned that the court erred in finding and holding that the one dollar fee indorsed upon the certificates of sale, and which was paid by the purchaser, constituted such a part of the sum for which the land was sold at tax sale as rendered the certificates void. Two propositions are urged by appellant in support of its contention in this connection: (1) that the fee was no part of the bid or purchase price of the land; and (2) that, even if it was a part of the purchase price, the charter authorizes the charge as a part of the costs. We are unable to find any charter provision which we think authorizes the charge as a part of the costs. The reference to costs in § 115 is, “Costs to date of sale.” In § 117 it is, “Costs as advertised.” We think the property holder, from the charter provisions and from the notice of sale, had the right to assume that all costs were included in the amounts set out in the notice. The notice stated that the sale would be made to satisfy the delinquent and unpaid taxes, with interest, penalty, and costs. A gross sum was then set out in front of each description of property, and the reasonable inference to be drawn from the notice was that the amount stated in each instance included costs, and was the whole sum that Would be demanded at the sale. The charter provision relating to the issuance of the certificate of sale in no way refers to any charge for its issuance. We think the fee cannot be regarded as costs, within the charter provisions, and especially so, since the notice to the land owner did not warn him of the attempt to cast-the additional burden upon his land.
In the opinion filed by the trial court, the only matter specifically mentioned as rendering the certificates void was the one dollar fee. But respondent urges that other facts, found by the court but not mentioned in the said opinion, were also sufficient to make them void. Among the facts so found which are urged as fatal irregularities are the following: The charter provides that the city clerk shall deliver the equalized assessment roll to the controller, and shall accompany it with his affidavit to the correctness thereof. A form of affidavit accompanying the roll of 1892 appears to have been signed by the clerk. Objection is made to it as insufficiently complying with charter requirements. Hot discussing that subject, it does appear, however, that no jurat was signed by any officer, certifying that the clerk Was ever sworn. The charter also requires that the controller shall carry out in separate columns on the roll the amount of the taxes assessed against each individual, firm, company, corporation, or unknown owner. The court found that this was not done, and that the controller knowingly pursued a different plan, viz.: that the property was set out in numerical order, so that the descriptions of different tracts owned by one person were separated and mixed with the descriptions of the property of others; and also that the owner of the property described in the certificates in question owned more than one tract included in the roll. The charter required that the notice of sale should conform to the plan provided for the assessment roll, and
Whatever may be said of the wisdom of the charter requirements, they were nevertheless controlling. If this were a foreclosure of a tax lien under the present general revenue law, with the property owner before the court, then under the liberal construction of the statute adopted by this court in Smith v. Newell, 32 Wash. 369, 73 Pac. 369, and approved in the recent case of Jefferson County v. Trumbull; ante p. 276, 75 Pac. 876, decided March 11, 1904, the above omissions could probably be corrected by the court. But such is not the case here. We are considering only the validity of a summary sale of property for taxes. It has long been the rule that the outlined statutory procedure leading up to such a sale, and governing the sale itself, must be strictly pursued. We deem it unnecessary to cite authorities in support of a principle so generally declared. The following is, however, a comprehensive statement of the reasons for the decisions:
“The process of collecting taxes by the sale of lands for their non-payment is a summary remedy, and in great meas*446 ure ex parte. Notwithstanding all the precautions which the law establishes, it is very possible that the owner may be entirely unaware of the proceedings until the sale has been consummated. The power of the collector to sell rests exclusively upon statutory authorization and is derived from no rule or principle of the common law. This power is a naked power, not coupled with an interest. .. . . Now, from these considerations it is easy to deduce a general rule. In order that a sale of land for taxes should be valid and unimpeachable, and should pass a good title to the purchaser, it is necessary that all the preliminary requirements of the statutes, made conditions -to the exercise of the power, and designating the various proceedings which are to culminate in the sale, should have been strictly complied with, and that the officers who execute the power should follow with precision, in so doing, the course marked out for them by law, and that the conditions subsequent to the sale, if any, should be duly observed. And upon this point the authorities are unanimous.” Black, Tax Titles (2d ed.), § 155.
"We therefore think, under the rules applying to summary sales for taxes, that, in addition to the one dollar fee first discussed, the various other irregularities above noted— at least, when aggregated — also constituted serious departures from charter provisions, and rendered the certificates of sale void.
It is next insisted by appellant that the action is barred by the statute of limitations, and it is urged that this question was not passed upon in the former appeal. The subject was discussed at length in that opinion. We held that the statute did not begin to run until the actual discovery of the illegal or erroneous issue. ’ We also held, as we have stated here, that the certificate holder was not under any obligation to make investigation that would lead to such discovery. It is now insisted that the fact that the one dollar fee Was charged was known to the purchaser from the time of the sale, for the reason that
Appellant’s counsel suggests that this is a case of great importance to the city of Tacoma, and that other oases are now pending in Pierce county involving in the aggregate near $50,000, which must in effect be determined by the decision in this case. Such conditions, however, do not justify departure from established principles. An effort to do so now would doubtless lead to serious embarrassment and confusion in other cases.
The judgment is affirmed.
Moustt and Duwbar, JJ., concur.
Anbers, J., concurs in the result.
Dissenting Opinion
(dissenting) — As I cannot agree with the holding that the‘tax certificates are void, I am compelled to dissent from the judgment ordered by the majority.