53 N.W. 434 | N.D. | 1892
Lead Opinion
This is a statutory action to quiet an adverse’title to real estate. The grounds of the action are not alleged in the complaint further than to state that plaintiff is the owner of lots 12 and 13 of block 9, in Keeney & Dewitt’s addition to the City of Fargo, in Cas's County; that defendant wrongfully claims an estate or title to the lots adversely to the plaintiff; that the action is brought to determine such adverse claim. The prayer of the complaint is, in effect, that defendant shall quitclaim his interest in the lots to the plaintiff, or set forth by answer the nature of his adverse claim, that it may be adjudged to bé void, and that defendant be restrained from asserting any claim to the lots. Defendant answered the complaint, denying each and every allegation thereof, and further set out title to the lots in himself by virtue of two certain tax deeds annexed to and made a part of the answer. One of the deeds is based upon a tax sale of the lots for taxes claimed to have been assessed against them by the taxing officials of the City of Fargo, in the year 1884, such tax deed being executed by the city treasurer pursuant to a tax sale made by him in 1885. The answer further alleges that, subsequent,.to such tax sale, defendant paid certain sums assessed against said lots by the city authorities as and for taxes. Referring to the other tax deed, the answer avers, in substance, that such deed was made and delivered to defendant by the county treasurer of
In deciding the case we shall not refer in detail to all the objections urged by plaintiff’s counsel against the validity of the tax sales and tax deeds through and by which defendant claims to be the owner of the land. We are unanimously of the opinion that the tax sales were illegal sales, and that the deeds given in pursuance of such sales are invalid, and hence convey no title to the defendant. The facts upon which this conclusion rests arc
The tax deeds being invalid for an illegality which relates only to the sales, and which does not go to the ground work of the tax, defendant contends very properly that he has a right to show
We will first consider the validity of the alleged tax'of 1884, for which the city treasurer sold the property in 188$; At that time the amended charter of the City of Fargo, adopted in March, 1881, was in force. Among other provisions of the charter were the following: “Sec. 5. The pPwers hereby granted shall be exercised by the mayor and council of the City of Fargo as hereinafter set forth.” “Sec. 8. The council of said City of Fargo shall consist of eight citizens of said city, being two from each ward, who shall be qualified electors of their respective wards, under the organic act of this territory, one of whom shall be elected president of the council at their first regular meeting after each annual election provided in §9 of this act.” “Sec. 13. All ordinances of the city shall- be passed pursuant to such rules and regulations as the mayor and council may prescribe; provided, that upon the passage of all ordinances the yeas and nays shall be entered upon the record of the city council,” etc. “Sec. 38. The mayor shall have power to sign or veto any ordinance or -resolution passed by the city council. Any ordinance or resolution vetoed by the mayor may be passed over the veto.by a vote of two-thirds of the whole number of alderman elected, notwithstanding the veto; and should the mayor neglect or refuse to sign any ordinance, or return the same with his objections in writing within ten days, the same shall take effect without his signature.” Section 12 declares that the “mayor and council” of the City of Fargo “shall have power to levy and collect taxes for general
At the trial plaintiff claimed that no such ordinance existed, because the same was never legally enacted or adopted by the city council, for the reason that upon the passage of the ordinance by the council the “yeas and nays were not entered upon the record of the city council,” as was required to be done by § 13 of the city charter. We think the evidence fully sustained plaintiff’s contention on this point, and the trial court found it to be true, as a matter of fact, that the yeas and nays were not entered in the record of the city council upon the passage of the ordinance, and that “said record contains no entry of or concerning the passage of said ordinances, except as follows: “April'19th, 188X, council met pursuant to adjournment. Revised ordinances were accepted, and old ones repealed.” Upon this record we are compelled to hold, under the authorities cited below, that the alleged ordinance was not legally passed or adopted, and hence never became a valid enactment. See 1 Dill. Mun. Corp. § 291, and cases cited in note 1. See analogous doctrine applied to legislation. Cooley, Const. Lim. (6th Ed.) 168; Suth. St. Const. § 48. Our attention is directed to the fact that an ordinance was adopted in 1884, which among other things, changes the date of selling real estate for city taxes, and fixes the rate of interest on city taxes after such taxes become delinquent at a rate specified by § 1 of the original ordinance. But this latter ordinance purports to be only an amendment of a single section of the' original
The trial court found as a fact, upon sufficient evidence, that the mayor and council did not in 1884, levy any city taxes. The undisputed testimony discloses that the council met at the proper time, and that all members were present. The council by resolution in proper form then levied the taxes for 1884, as far as the council could make such levy by its separate action. But this evidence is fatally insufficient to establish the fact of a tax levy by the “mayor and council.” The testimony offered, i. e., the record of the proceedings of the council, refers only to the action of the council, and in no way relates to the action of the mayor. So far as the evidence discloses, the mayor never participated in the levy in any manner, and never assented to or became aware of the action of the council in the premises. Nor are we at liberty to indulge the presumption that a vital step in the tax levy was in fact taken when there was no evidence offered to show that such step was taken, and where the evidence put in to show the levy falls short of doing so. We cannot assume without proof that other and further proceedings were had. The burden to show a valid levy by the “mayor and council” was with the defendant, and he failed to show such levy. It is elementary in tax law that essential steps in laying a tax must appear by some record. Such steps cannot be shown by parol. In this case no parol evidence of the fact was offered. Powers v. Larabee, 2 N. D. 141; 49 N. W. Rep. 724. The proof offered wholly fails to show a valid levy of the city tax in question, and we therefore rule that the alleged city tax for which the lots were sold was void. A levy by the
Turning to the county tax, the respondent contends that such tax was wholly void, first, because the description of the property as found in the assessment roll for the year in question is insufficient to meet the requirements of the law. Certain pages of the x'oll were put in evidence, and, among othei's, the pi'inted heading at the top of the page on which the lots ai'e described, which heading is as follows: “Assessment Return of Taxable Pi'operty in Cass County, Dakota, for the year 1886. Real Propei'ty. Keeney & Dewitt’s Add’n.” Below this was a pi'opcr desci'iption of the lots as lots 12 and 13 of block 9. Respondent ci'iticises the l'ctunx, for the l'eason that it does not appear on the page where the lots are desci'ibed in the retuirn where they ai'e located. It is tx'ue that such page does not disclose whether the lots ai'e situated within the limits of Fargo or not, nor does this page indicate or state that Keeney & Dewitt’s additioix is an addition to Fai'go. But another pi'inted heading of a proceeding page of the same return was put in evidence by the appellant as follows: “Assessment Return of Taxable Property in Cass County, Dakota. Real Property. Fargo. Original Addition.” This was the heading on page 3 of the return and descriptions of real estate continued under this head to page II of the return, and on page 12 the return was as follows: “Keeney & Dewitt’s Addition;” and under the last mentioned heading the descriptions continued until page 19, and embraced the property in question. From all of these pages of the return, when read togethe'r and fairly construed, we are compelled to hold that the description of the property, though not to be commended, is yet a substantial description, and one which fulfills the requirements of the law. We arrive at this conclusion without reference to parol evidence, which showed that the only Keeney & Dewitt’s addition in Cass County was an addition to Fargo. We therefore rule that the property was sufficiently
Respondent also claims that for certain reasons-, not. necessary to1 detail, the levy of taxes in in 1886 was irregular and void. We have carefully considered the points raised, and are clear that the taxes were levied in substantial conformity to law, and hence hold that the levy was sufficient.
The tidal court found as follows: “That on or- before the first Monday of July, in said year, the county assessor of Cass County did not make and deliver to the county clerk of said county an assessment roll; that no such roll was made and sworn to until the 12th day of July, 1886; that in the year 1886, for the purpose of equalizing and correcting the assessment roll, and-as aboard of equalization, the county commissioners of Cass County did not hold a session of two days, or at any time, commencing on the first Monday or the first Tuesday of July, in said year; that, as shown by the record of said commissioners, in the year 1886, they did not meet as a board of equalization until the Tuesday after the first Monday in July, and then that said board only- met to adjourn, and that, without a quorum, the board adjourned from day to day until the 13th day of- July, 1886; that on said day the board adjourned until the 14th day of July, at 10 o’clock A. M.; and that on the 14th day of July, 1886; the board of county commissioners of Cass County did not meet as a board of equalization, or otherwise, until 2 o’clock p. m.” The undisputed testimoney shows that the board of equalization met on the Tuesday next after the first Monday of July, Monday being the 4th, and a legal holiday. The board was composed of five members, and a quorum was present. The board organized, and at once adjourned until the next day, Wednesday, at 10 A. m. On Wednesday the journal enjdjy^É^as follows:' “Wednesday, July 7th, 1886. Board of equalization met at 10 o’clock A. m. Present, Messrs. Gill and Kissner. No quorum being present, board adjourned till 10 o’clock A. m. tomorrow.” No quorum being present on the
The questions of law arising upon the findings and the undisputed evidence and facts are of serious importance, whether considered with reference to the collection of the public revenues or with reference to the constitutional and statutory rights of individual taxpayers; nor do the discordant decisions and apparently endless discussions of elementary writers afford much assistance to the court in its investigations of the different points presented. The principal questions connected with the meeting of the board are two in number, and are as follows: First. Did the board of equalization in Cass County in the year in question meet upon the proper day, and hold a session of not less than two days, as the statute in force at the time required it to do? Second. When the authenticated assessment roll is not delivered to the auditor- on or before the first Monday in July, as the statute directed shall be done, but is delivered before the board of equalization adjourns, and after its delivery the board remains in session for a period of two days, and while in session -actually equalizes the taxes, is such delay in the delivery of the roll an irregularity in the process of assessing and equalizing the taxes that will render the taxes of that year void?
Taking up the questions in their order, it is manifestly true that the board of equalization did meet on the day designated by law for their first meeting. The statute names the first Monday of July, but that year it happened that Monday was July 4th. This day being a legal holiday, the statute expressljjárolhorizes the postponement of secular business to be done on such day until the next business day. Comp. Laws, § 4752. The board met for the first time on the Tuesday next following the first Monday of
We have been unable to find a decided case in point upon the question presented, i. e., as to the validity of no quorum adjournments when such adjournments are made from day to day as a means of preserving the life of meetings required by law to be held by the governing officials o’f public corporations. But this court will take notice judicially that the practice of making such adjournments extensively pervades in the United States, and that it is not limited to such bodies as congress- and state legislatures, where it has the express sanction of organic law but obtains in city councils and in town, county, and school district boards, where there is no express provision of law authorizing it. Cush. Leg. Law & Pr. Assem. (2d Ed.) § § 254, 255. We think so valuable a rule, as applied to public corporations, at least should be preserved, particularly as its denial would operate disastrously to the public interests in many cases, as would be true with respeet to meetings of the only board before which the taxpayer can be heard upon the matter of the valuation of his property for taxation. Our conclusion is that the board met at the proper time, and held a session of not less than two days in the year 1886.
This brings us to another question. The statute in force, (Comp. Laws, § 1582,) required the assessors to return their assessment rolls to the county clerks on or before the first Monday of July of each year. In 1886 the return was not
We here encounter a point arising under our very peculiar and. very confusing statutes inherited from territorial times. Apellant contends that the action was not lawfully commenced, and must be dismissed because, the taxes and interest were neither paid nor tendered before the suit was brought; citing § 1640 of the Comp. Laws in support of this position. This section, among other things provides: “No action shall, be commenced by the former owner or owners of lands- * * * to recover possession- of lands which have been sold and conveyed by deed for nonpayment of taxes, or to avoid such deed, * * * until all taxes, interest and penalties, costs, and expenses shall be paid or tendered by the parties commencing such action.” A liberal construction of this section alone would oblige us to dismiss this action, for the- reason that the tax of 1886 was neither paid nor tendered, before suit; but we do not feel justified in putting such a construction upon the section, in view of the fact, especially, that.§ 1643 of the same statutes contains provisions in direct conflict with those quoted above, and the latter statute leads to a widely different result. Section 1643 provides, among other things, that in an. action “to recover the possession or title of any property, real -or personal, sold for taxes, or to invalidate or cancel any deed or grant thereof for taxes, * * * the true and just amount of taxes due upon such property or by such person must be asc.ertainéd, and judgment must be rendered and given therefor against the taxpayer.” A comparison shows that the provisions of the statute tabove
Respondent’s counsel contends, however, that neither of the sections above quoted have any application to this case, because, as he argues, the action is not in strictness an action to either “cancel” or “avoid” a tax deed, and contends that the action is statutory in its nature and origin, and is nothing more than a challenge to the defendant to bring forward his claim, or be debarred from any interest or title to the lots in question. This suggests a wide field for discussion, upon which we do not deem
Appellant’s counsel further contends that plaintiff cannot invoke the powers of a court of equity in his behalf, becase, as counsel argues, he has not done equity by offering to pay his proportional share of the public burdens. Counsel claims that, if no valid taxes have been assessed or levied against the lots, still a court of equity would, as a matter of conscience, refuse to remove the cloud until plaintiff had first tendered payment of his proportional share of the public burdens, which should have been assessed as taxes, but which where not assessed. This rule seems to have the sanction of some courts, while other courts have refused to apply it. We cannot adopt the doctrine, not only because we are governed by statutes which are designed to regulate the practice in tax cases, but, on principle, this court is opposed to the theory that a taxpayer should, especially where the collection of the
But defendant now claims that the judgment falls short of meeting the requirements of § 1643 of the statutes, and should be modified, so as to give judgment in favor of defendant for the “true and just amount of taxes against the property.”. The principle contention in the court below and in this court turned upon the title,, both parties claiming ownership, and defendant demanding that .the action should be dismissed, and that the title be confirmed in him. A rehearing being granted, the attention of the
Counsel calls attention to the Farrington case, 1 N. D. 102, 45 N. W. Rep. 191, where a majority of this court say, at p. 120, 1 N. D., and p. 197, 45 N. W. Rep.: “Said section is mandatory upon the court, and it becomes its duty to enter up judgment for the amount of the legal tax, and such judgment in no manner
Dissenting Opinion
(dissenting.) I am unable to assent to that portion of the foregoing opinion which limits the construction given to § 1643, Comp. Laws, in Farrington v. Investment Co., 1 N. D. 102, 45 N. W. Rep. 191, and Bode v. Same, 1 N. D. 121, 42 N. W. Rep. 658, and 45 N. W. Rep. 197, to the particular facts of those cases. I am also of opinion that, under the pleadings and admissions in the case, and for the purpose of a money judgment for taxes under said section, the legality of the subsequent taxes stands admitted. In all other respects I concur in the opinion written by Justice'Wallin.