104 F. 689 | 8th Cir. | 1900
after stating the case as above, delivered the opinion of the court.
The validity of the tax deed which is involved in this case, namely, the deed executed by the county treasurer of Ouray county, Colo., on May 9, 1898, in favor of Charles T. Hammon, is challenged in this court-on several grounds: First, because the assessment was! void for want of a proper description of the property; second, because the property in question was not properly advertised for sale; third, because the tax deed is void on its face, in that it shows that the sale was made at a time not authorized by law; and, fourth, because the requisite affidavits were not filed by the county treasurer proving the publication and posting of the notice of the tax sale. We have not found it necessary, however, to consider all of these objections to the validity of the tax deed, since we are satisfied that the first objection must prevail, and that the deed should be canceled because the assessment was void for want of a proper description of the assessed property. Before the assessment was made, the following statute relative to the assessment of mining claims had been adopted by the general assembly of the state of ’Colorado:
“It shall be the duty of county assessors in assessing mining claims which are entered or patented, to give on their assessment rolls the mineral survey numbers of the same; whether said assessment be for real estate or personal property.” Laws Colo. 1891, p. 113.
See, also, 3 Mills’ Ann. St. Colo. 1891-96, p. 883, § 3226a.
The statute, as last quoted, embraces all the provisions of an act approved on April 10, 1891, relating to the assessment of mining claims, except a provision which was added to the act declaring that it should take effect immediately. And, inasmuch as the sole object of the act seems to have been to prescribe the manner in which mining claims should be described by the assessor on the assessment roll, the direction in that behalf being that “the mineral survey number” of such claims shall be stated on the assessment roll, it is impossible to regard the act in question otherwise than as mandatory. For some reason — probably because confusion had arisen in the method of describing mining claims — the legislature deemed it advisable that they should thereafter be described on the assessment roll by stating the number of the survey. It accordingly made it incumbent on all assessors to thus describe them, giving such officers no discretion to describe them otherwise. Learned counsel for the appellants have called our attention to a provision found in section 3790, Mills’ Ann. St. Colo., which declares that “no irregularity or error or omissions in the assessment of any property, or in the levying of any tax, shall affect in any manner the legality of any taxes levied thereon, nor affect any right or title to such real property which would have accrued to any party claiming or holding the same under or by virtue of a deed executed by the treasurer, as provided by law, had the assessment of such property been in all respects regular”; and they insist that the failure of the assessor to give the survey number of the mining claim in question was a mere irregularity, which, by reason of the statute last quoted, did not impair the validity of the assessment or the treasurer’s deed.