State ex rel. Saunders v. Fink, 74 Neb. 641

State ex rel. Saunders v. Fink

74 Neb. 641 | Neb. | 1905

Jackson, C.

In a proceeding by the county of Douglas under chapter 75, laws of 1903 (popularly known as the “Scavenger Law”), the city of Omaha, on the 24th day of March, 1905, purchased lots 15 and 16 of J. E. Riley’s Subdivision, an addition to the city of Omaha, the bid of the city on lot 15 being $80.80, and on lot 16 $100. By the decree under which the property was sold it was determined that the tax on lot 15 amounted to $80.80, and on lot 16 to $315.34. The county treasurer issued certificates to the city of Omaha according to the provisions of section 22 of the act under consideration, the certificate covering lot 15 being numbered 5,095, and the one covering lot 16 numbered 3,898. Proceeding'under section 32 of the act the county treasurer, respondent herein, in the month of April, *6421905, caused notice to be published of the sale required by him to be held, commencing on the first Monday of May, and included in the notice the certificates issued to the city of Omaha, as above recited; The property not having been redeemed prior to the sale, the relator bid at the sale for tax sale certificate No. 5,095, covering lot 15, the sum of $75, and for tax sale certificate No. 3,898, covering lot 16, the sum of $90, and at the same time offered to pay all unpaid subsequent taxes on both lots. There were no other bidders for either of these certificates, unless the city of Omaha was a bidder, concerning which we will determine later in this opinion. The respondent refused to accept the bid of the relator, and thereupon the relater applied to the district court for Douglas county for a writ of mandamus to compel the respondent to accept his bid and assign the two tax sale certificates in dispute to him.

In the petition the relator set out in full all of the proceedings of the county of Douglas leading up to the sale of the two lots described, the sale of these lots to the city of Omaha, and the issuance of the certificates therefor, the publication of the notice in April, 1905, and his bid for the two tax sale certificates, and alleged: “That there were no other bidders for either of said certificates, except the city of Omaha pretended to bid the sum of $80.80' for certificate No. 5,095, and to bid the sum of $100 for certificate No. 3,898; that the relator at the time of making said bid tendered cash therefor and offered to pay all taxes not covered by the certificates on the real estate covered by the certificates, and demanded that said bids be accepted and the certificates assigned to him; that the county treasurer, in violation of law, refused and declined to accept the bid of the relator, or to assign the certificates to him, but pretended to accept the bid of the city of Omaha, although the city of Omaha did not offer to pay cash therefor; that the certificates are still in the possession of the respondent; that the relator was the highest and best bidder at the sale, and the only one that offered to pay cash for said certificates.” He also chai*643lenged the right of the city to hid on the tax certificates, and the right of the respondent to accept the bid of the city, and alleged that he had no interest in the property except such as he acquired by reason of his bids. To the petition the respondent demurred. The demurrer was sustained by the district court, and the writ refused, and, the relator electing to stand upon his petition, the case was dismissed. The relator appeals.

The contention of the relator is: First, that the city of Omaha could not become a bidder at the sale for the tax certificates in question, and, second, that, as he was the only bidder at the sale, his bid should have been accepted and the certificates assigned to him. The respondent contends that, as the bid of the relator did not coyer' the amount due on the certificates, he was not authorized to accept the bid, and for that reason the writ was properly denied. The questions thus presented call for a construction of the provisions of section 26 of the act under which the proceedings were had. This section is as follows: “Any person desiring to purchase any certificate of tax sale owned by the state or by any county or city, either at public or private sale, may secure an assignment thereof by paying to the county treasurer the amount due thereon, as well as all subsequent taxes and assessments on the property then delinquent, provided, a premium sale may be purchased at public sale for less than the amount of the decree and such sale shall be subject to the provisions of section twenty-three. Such assignment shall be made by indorsement of the county treasurer in his official capacity, countersigned by the county clerk. A record shall be kept of such assignments by the county treasurer and the county clerk. The effect of such assignment shall be to vest in the assignee the same rights which would have been secured to such assignee had he been the original purchaser at the sale.” The term “premium sale” as used in this act applies to such sales as are made for less than the amount of the decree.

In the consideration of the case it does not seem impor*644tant to inquire into the right of the city of Omaha to become a bidder at the sale of the tax certificates, unless the respondent is mistaken as to the rights of the relator, because, if the contention of the respondent is correct, it was unnecessary for the city to become a bidder at the sale in order to protect its rights. We shall therefore first determine as to the contention of the respondent. In the construction of a statute an imperative rule is that effect, if possible, must be given to every clause and part of the statute. Franklin v. Kelley, 2 Neb. 79; McCann v. McLennan, 2 Neb. 286; Union P. R. Co. v. Burlington & M. R. R. Co., 19 Neb. 386; State v. Babcock, 21 Neb. 599; State v. Bartley, 39 Neb. 353; McIntosh v. Johnson, 51 Neb. 33. In the construction, therefore, of section 26, .authorizing any person to purchase tax certificates of tax sale owned by the state or by any county or city, effect should be given to that part of the section preceding the proviso, as well as the proviso itself, and the two parts should be harmonized, if possible, so that neither will be violated, because, if it may be said that there is an apparent contradiction, it is the duty of the court, if a reasonable construction can be found which avoids such contradiction, to adopt such construction. Franklin v. Kelley, 2 Neb. 79. If, therefore, the proviso may be construed to give it force without changing or modifying the plain meaning of what precedes, then such construction-should be adopted. By that part of the section preceding the proviso, the relator was authorized to purchase the tax sale certificates at either public or private sale, by paying the amount due thereon, and all subsequent taxes. Evidently “the amount due thereon” was the face of the certificates, with interest, as provided by section 27 of the act, and, keeping in vieAv the meaning of the term “premium sale,” it becomes evident at once that the amount due on the certificates might differ materially from the amount due on the decree, as it did in this case. With that distinction in mind, the right of the relator may readily be determined by giving effect to every clause and part of the section under consid*645eration. He had the right to purchase at the sale tax certificates in dispute for the amount due thereon, although that amount might be less than the amount of the decree. To hold that he had any other or greater right would be to indulge in conjecture as to the object which the legislature had in view, and no such conjecture of the object is permissible, unless such object can be clearly ascertained from the language of the statute. Nebraska R. Co. v. Van Dusen, 6 Neb. 160. It seems clear that the respondent was right in declining the bid of' the relator, and in refusing to assign the certificates upon such bid.

We recommend that the judgment of . the district , court be affirmed.

Duffie and Albert, CC., concur.

By the Court: For the reasons stated in the foreging opinion, the judgment of the district court is

Affirmed.

1. Statutes: Validity. Conceding the provisions of sections 12 and 13 of the amendatory act of the legislature (laws 1905, ch. 76) relating to the election of police judge to he invalid, which is not determined, the remainder of such act would not be affected thereby. Such provisions, it is held, were not an inducement to the passage of the remainder. 2.-: -. The provision found in said act (sec. 12) for an election of city aldermen on the first Tuesday in June, 1905, is not special legislation inhibited by the constitution, because applicable to the one city only which at such time comes under the operaton of the law. 3.-: Enforcement. Invalid provisions of an act, not operating to avoid the whole, cannot be relied on to excuse the performance of a duty enjoined by the valid portions of the act. 1. Officers: Legislative Power. The legislature cannot appoint county-officers, nor by an act solely for that purpose extend the terms of such officers. 2. Constitutional Law. Chapter 47 of the laws of 1905 is unconstitutional and void.