11 Utah 1 | Utah | 1894
Lead Opinion
This was a proceeding in mandamus, commenced by the plaintiff in the court below against the defendants, Weber county and Joseph P. Ledwidge, who was at the time of the filing of the complaint, and still is, the duly elected, qualified, and acting county clerk of Weber county, Utah. The plaintiff was, at all times mentioned, tax collector of Weber county. The petition alleges, in substance, that on
The tax collector claimed $5,336.56 for costs and fees for making such sales. These costs are claimed to amount to $7 in each case, including the cost of publication and filing with the recorder. Six dollars of the charge consists of 25 cents per folio for each certificate of sale and 25 cents per folio for each duplicate certificate of sale, there being 12 folios in each. It was also found that the certificates contained 12 folios each. It was also found that the collector has presented no claim to the county court for his fees or costs, or the amount of taxes represented by such certificates; that no part of it has ever-been allowed by the county court. It is further found that the compensation of the county collector was fixed for the year at -the sum of $3,000; and, in addition thereto, he was to receive all costs and fees allowed him by law,- including costs and fees allowed him by law on tax sales, and for making tax-sale certificates made to the probate judge. It was further found that 65 out of the 905 tax sales which were made to the probate judge were sales of
The first question which we deem proper to discuss is whether or not the plaintiff should be credited with the amount of taxes represented by the 65 certificates of sale in cases where the owners had personal property assessed to them. There is no finding that these persons had per
It is evident that the taxes of these 65 delinquents have not been paid, and that they constitute a lien upon the
The next question is as to the fees for making out certificates of sale. One of the defenses is that the certificates are more lengthy than is necessary, and that a certificate that contains two folios is sufficient, and that, by reason of the length of the certificates, the charges therefor are extortionate. The statute fixing the fees of the ■collector is found in the Session Laws of 1890 (page 50), and is as follows, omitting the formal parts: For each ■certificate of sale, per folio, 25 cents; for publishing the name and amount of tax due from each delinquent, $1; for filing certificate of sale with the county recorder, 50 cents. Section 2031 of the Compiled Laws of Utah provides: ■“When real estate is sold for taxes, the collector shall issue a certificate to the purchaser, reciting/5 etc. “ A duplicate of such certificate shall be filed by the collector in the office of the recorder of the county; provided, that if at such sale no person bid and pay the collector the Amount of tax required to be paid as aforesaid on any real estate, the collector shall make to the probate judge and his' successors in office, for and in behalf of such ■county, a certificate similar to that given to other purchasers, and such sale to the county shall have the same ■effect as if made to an individual. And the clerk of the •county court shall credit the collector with the amount of the tax due thereon, and costs to date of sale/5
There appears to be no controversy but that the collector is entitled to 25 cents per folio for each certificate of sale. The difficulty arises in the fact that in these 840 tax sales made to the probate judge, which the court below found to be valid, he also made out a duplicate certificate, and filed the same in the office of the county recorder, and he •claims 25 cents per folio for each of these duplicates. 'The court below declined to allow him anything for making
This brings us to the remaining question, whether or not the certificates of sale are unnecessarily lengthy and the charges therefor extortionate. The form of certificate is set out in the record at length, and, while it is more lengthy than perhaps the writer of this opinion would use were he called upon to make a certificate of sale, yet it is clear that the form is not prescribed by statute; that it is left to the discretion of the collector to adopt such form as he may choose. In the absence of any showing (and there is none in this record) that the form was fraudulently .gotten up for the purpose of creating illegal charges against the county, we cannot presume that the collector was actuated by bad faith in using it. We think the same presumption is to be indulged in favor of the plaintiff that is indulged in regard to other public officers, and that is that he has acted in good faith, and with an honest intention to = execute the law. It was suggested in argument, and not' disputed, that exactly the same form is in use throughout the territory, and has been for many years. Whether this is true or not we do not know, but it would seem from a careful examination of the matter that the proportion of words in the certificate which might be
It results from this conclusion that the plaintiff is also ■entitled to credit for the sum of $2,520, being $3 each for •840 tax-sale certificates, in addition to the amount allowed him below. In concluding this opinion, we may say that we have entertained grave doubts as to whether this action -and the kindred one of Weber Co. v. Hamer, 37 Pac. 749, are properly brought by proceedings in mandamus. We •should have examined that question more at length were it not for the fact that the stipulation of facts indicates that it was the intention, of the court below to fix the .amount that the plaintiff was entitled to upon the showing made that the defendant should credit him with it, and upon appeal we are asked to do the same thing. We .have done so without considering particularly the question of procedure. We are of opinion that, in addition to the $8,804.63, with which the court below directed that the plaintiff be credited, he should be credited with $1,689.88, -additional delinquent taxes, and with $2,520, additional fees and costs; making a total credit of $13,014.51. It is .therefore ordered that the judgment be reversed, and the «cause remanded to the court below, with directions to
Dissenting Opinion
(dissenting)'.
I do not agree w'ith my brethren in reversing this case. It appears from the findings of fact, which were agreed to by all the parties to the suit, that the plaintiff was the-tax collector, and, as such, on the 18th, 19th, and 20th of December, 1893, offered for sale, at public auction, .certain separate parcels of real estate, for non-payment of territorial, county, and school district taxes for the year 1893. That for 905 of these separate parcels of land there-•were no bidders, and he thereupon made out certificates-of sale to the probate judge of said county, for and in behalf of the county, and afterwards delivered the certificates to defendant Ledwidge, as clerk of the county court, and demanded of said clerk credit for the taxes due and costs to date of sale, amounting to $15,853.57; and the clerk accepted the certificates, but refused to give the credit demanded, the county also refusing to give the same. That the costs of each sale were $7, as folloAvs: £CFor publishing the name and amount of taxes due from each delinquent, together with a description of the property, 50 cents; for filing each certificate of sale with the county recorder, 50 cents; 25 cents per folio for each certificate of sale filed with the county recorder; and 25 cents per folio for each certificate of sale deposited with the county clerk/-’' —the one certificate being a duplicate of the other, and each containing not less than 12 folios, exclusive of the description of the real estate. That no claim for the
Under this state of facts, the first question raised is whether the 65 tax sales, where the owners of the real estate sold had taxable personal property, are void. The court so held, and counsel for appellant insist that this was error. The statutory provision relating to this question, after providing for the publication of a list of delinquent taxes, reads as follows: “On the third Monday of December of each year, the collector shall expose for sale sufficient of such delinquent's real estate: Provided, that the personal taxable property of such delinquent has been first exhausted by a levy and sale, and for that purpose the tax on the real estate is made a lien on the personal property to pay the taxes and costs/’’ etc. Sess. Laws 1892, p. 29. This is an amendment to section 11 of the act approved March 13, 1890, which is a new section, numbered 2030a, added to section 2030 of the Compiled Laws of Utah of 1888. All of these sections contain similar provisions regarding the application of the personal property to a delinquent’s taxes and costs. From an ex-
In the case at bar, the officer attempted to sell the 65 parcels of real estate without first exhausting the personal •taxable property of the several owners. The exhausting .of the personal property being a condition precedent, under our statute, to his power to sell the real estate, and he having failed to observe it, his power to sell never was created, and his action was without authority. Black, in his treatise on the Law of Tax Titles (section 255), states the law as follows: “ Such a direction is mandatory, and its due observance is strictly a condition precedent to the authority to proceed further. It may therefore be stated
It is insisted that the right conferred by section 2030a,. above quoted, is a personal right, and that only the taxpayer can complain. If this be conceded, how can it avail the appellant P The moment the county should attempt to dispose of lands it had acquired through a void sale the-owner would assert his right. In that event the county would stand on the same footing as an individual, and with no better rights by virtue of the sale. Where a person, at a void tax sale, purchases land, the payment of the tax thereon is the same as a voluntary payment, made without the request of the owner; and he has no lien for the money so paid, unless given him by statute, for at common law the rule of caveat emptor applies. The county, having acquired no lien or other rights by virtue of the sales in question, is under no obligation to credit the collector with the costs of void sales. Black, Tax Titles, §§ 463, 464; Cooley, Tax'n, pp. 476, 509, 510; Harper v. Rowe, 53 Cal. 233.
It is further contended by counsel for appellant that it. was lawful for him to charge 25 cents per folio for the duplicate certificate of each of the remaining 840 tax sales, and that the court erred in holding such charge illegal. It is the duty of the collector, when he sells .real estate for taxes to issue a certificate of sale to the purchaser, and file a duplicate of such certificate in the office of the county recorder. When there is no bidder at any sale who. will pay him the amount of the delinquent's tax, he is required to make such certificate to the probate judge, for and in behalf of the county, and then such sale to the county shall have the same effect as if made to an individual. Comp. Laws Utah 1888, § 2031. For these services the legislature has provided fees, as follows: “For each certificate of sale, per folio, twenty-five (25) cents.
It will be observed that there is no provision here for fees for the making of a duplicate certificate except 50 •cents for filing it with the recorder, and. there is no implied obligation on the part of a county to make compensation to its officers. The right must be expressly conferred by law; and, when a statute creates a liability where none otherwise exists, it will be strictly construed, and the -courts will not aid it in favor of the officer. Nor will they enlarge such liability, or extend it beyond the provisions as expressed in the statute. Nor is the statute ■under consideration at all ambiguous or uncertain in its provisions. It expressly provides a folio fee for “each ■certificate,” and is silent as to the duplicate, except that it provides for filing it. It is clear that the legislature intended that the duty of making the duplicate certificate .should be performed without additional compensation. The collector, having taken upon himself the discharge of the duties of his office, is presumed to have accepted it with a knowledge of the provisions of law relating to it. He therefore assumed the duty of making such duplicate ■certificate, knowing that there was no provision of law which would entitle him to the fees in question. The .statute does not use the plural, but the singular, form of the word “ certificate,” and the folio fee allowed in each tax sale can apply to but one certificate. Suth. St. Const. § 371; Cooley, Tax'n, p. 266; Rowe v. Kern Co., 72 Cal. 353; 14 Pac. 11; Green v. Holway, 101 Mass. 243; City of Alton v. Aetna Ins. Co., 82 Ill. 45; Boyd v. Hood, 57 Pa. St. 98; Wroughton v. Turtle, 11 Mees. & W. 561. Counsel for appellant has cited the cases of McKinstry v. U. S., 40 Fed. 813; and Clough v. U. S., 47 Fed. 795, in
It is further contended that the court erred in deciding that each of the 840 certificates is longer than necessary, and that the costs charged in each case are one dollar in excess of what should have been charged. It appears from the agreed findings of fact that each certificate contains 12 folios of matter, exclusive of the description of the-land. Section 2031, Comp. Laws Utah 1888, provides as follows: “When real estate is sold for taxes, the collector shall issue a certificate to the purchaser, reciting substantially the facts of the non-payment of the tax, levy upon, advertisement and sale of said real estate.” It will be-observed that there are but four facts which shall be substantially recited in the certificate, — the non-payment of tax, the levy, the advertisement, and the sale. The statute provides no form, and the collector is therefore entitled to exercise a reasonable discretion in creating and adopting such a form as will enable him to comply with the statute. This discretion, however, will not permit him to insert unnecessary words and sentences into the form, or to recite facts therein not required by the terms of the-statute, and charge fees for the same. While the collector will not be held to the strictest rules of propriety in the use of language, yet unnecessary repetition should be-avoided, and the form should be reasonably concise. In the case at bar, as appears from the record, the form contains 12. folios, and yet the statute requires the reciting of but four facts in the certificate. An examination of it shows it to be of unreasonable and unnecessary length,
Counsel for appellant further contend that it was the duty of the county clerk to credit the collector with his costs on the assessment roll, without previous allowance by the county-court. There are various statutory provisions respecting the duty of the clerk and county court. Section 187, p. 298,. 1 Comp. Laws Utah 1888, provides: “The county courts in their respective counties have jurisdiction and power under-such limitations and restrictions as are prescribed by law.”' And, under subdivision 12 of this section, such courts have power “to examine and audit, at least once a year, the accounts of all officers having (¿ie care, management, collection or disbursement of moneys belonging to the county- or appropriated by law or otherwise for its use and benefit,” and, under subdivision 13, “to examine, settle and
The provision referred to reads: “And the clerk of the ■county court shall credit the collector with the amount of the tax due thereon, and costs to date of sale.” If the position of counsel be correct, then the collector's claim for costs will become an exception to any other claim against the county. An examination of the various provisions reveals no such intent on the part of the legislature; nor does it reveal any conflict between the several provisions of-law. When these several provisions are read together, they mean simply that the county court shall audit and pass upon the claim of the tax collector for fees and costs, the same as any other claim; and then, when so audited and passed upon, the county clerk shall credit him with the amount allowed by the court. The clerk simply acts under the direction of the court. He cannot act in the capacity of clerk without acting under the orders of his superiors in any matter requiring judgment or discretion, judicial in its nature. There is no
The question is, can the collector, receiving a fixed salary, withhold any money, which he receives in his official capacity, from the county treasurer, in payment of claims due him from the county? Section 2036, Comp. Laws Utah 1888, so far as material here, reads as follows: “ The clerk of the county court in each county shall keep an account with the collector, debiting him with the amount of tax assessed and crediting him with the amounts paid; and the collector is hereby required to pay to the county treasurer, once a month, or oftener if required by the county court, all county funds collected by him, and shall take the treasurer’s receipt therefor, specifying the amounts paid in kind.” This is a clear statement of the duties of the collector, and leaves no room for doubt. Under its provisions, the collector must pay, not only a part, but “all, the funds collected” to the treasurer, once a month, or oftener if required by the court; and he has no right to any offset, not even though his claim or demand be for unpaid salary. Having collected the money, it is his duty to pay it over promptly, as provided by law; and he has no right to pause and question the right of the county to receive it before paying a demand due to himself. Nor has he a right to withhold any portion of it, as compensation in addition to his stipulated salary, in the absence of a statute expressly giving such right.
Cooley, in his work on taxation (page 704), thus states the law: “It has been seen that the law sometimes provides very summary proceedings for the enforcement of the duty to pay taxes, and that the legislative competency to do so has been very fully sustained. With much greater reason may the law provide summary remedies against those who, having accepted official positions under the revenue