Lead Opinion
This is one of the cases wherein the Atlantic & Pacific Railroad resists the payment of the taxes for the year 1887 in the counties of Mojave, Yavapai, and Apache. There are questions common to each of those counties, but an independent one applies alone to the county of Apache, which question arises as to the jurisdiction of the court in which judgment was obtained against the railroad. A special appearance was made to the jurisdiction, and the contention made that, it being a special term of the court, there was no authority to try the tax cases. The complaint shows its being filed at the special April term, 1888. The judgment was had at the special term. The notice of the time and place of sale of property in the delinquent list fixes the date of the application to the district court for a judgment against the same upon the third Monday in April, A. D. 1888, and that the sale will take place on the Monday succeeding said third Monday in April, A. D. 1888. The regular term of the district court to be held in the county of Apache commences on the first Monday in July of each year. Paragraph 628, Revised Statutes, pro
We must conclude that the term “fixed by law” must be the regular term of court as fixed by statute. Special terms are allowed to be held for the trial of civil and criminal causes, and the transaction of civil and criminal business generally. This is certainly not to embrace special proceedings requiring a fixedness of time. The time of sale is on Monday next succeeding the day fixed by law for the commencement of such term. All the tax-payers are presumed to know their regular terms of courts. The holdings of special terms are in the discretion of the judge. A tax-payer, knowing such time, rests easily, believing at the proper time he can come and make his defense. He may temporarily leave the territory, and, while resting in fancied security, an order is made for a special term of court, and he divested of his property without a hearing. It is not thus in other actions, for there the resident litigant has to be personally served with process, and, besides publication in non-resident cases, the summons and complaint have to be mailed to the defendant.
Barnes, J., concurs.
Dissenting Opinion
dissenting.—I deeply regret that the majority of the court have felt constrained to reverse this case for the reasons assigned. The magnitude of the interests and the questions involved, both to the people and defendant, the Atlantic & Pacific Railroad Company, render the final determination of those interests and questions a matter of grave public concern. If the railroad is not liable to taxation, it should be no longer harassed with suits to enforce the collection of taxes from it; if it is liable, the people are entitled to the revenue. In either case, the public interests and justice require that the matter should be speedily adjudicated. We do not mean to intimate, however, that if the judgment was erroneous ;t should not have been reversed, but we do contend most strenuously that neither of the reasons assigned in the opinion of reversal is tenable.
The first position taken is that the district court of Apache County had no power or jurisdiction to render a
It is not and cannot be denied that that was the next ensuing term after the completion of the notice. It was the first term following or coming after said notice. Did the legislature mean what it said when, by specific enactment, it required the tax collector to apply for the tax judgment at the term next ensuing or following, or coming after the completion of the statutory notice or summons to delinquent tax-payers? If it had meant the next ensuing general term only, would it not have used the one single word “general”? Or, as it is more probable, as it had provided only one general term for Apache County, viz., the term • beginning on the first Monday in July, would it not have said that such judgment should be applied for at the general July term? If this had been the ease, and the judgment had been rendered at the special April term, it would have been clearly irregular. This was the case with the principal authority relied upon by the majority of the court to sustain their opinion. See Brown v. Hogle, 30 Ill. 119. There the collee
Now, in 1887, the territory of Arizona, through its legislature, adopted this Illinois revenue law of 1872-73, almost verbatim, et literatim, with the construction put upon it by the supreme court of Illinois in Thatcher v. People, and other cases passed upon prior to 1887. 30 Ill. 119, has already been noticed; but it is to be further observed that March v. Chestnut, 14 Ill. 224, and Spellman v. Curtenius, 12 Ill. 409, the other two cases relied on, only uphold the old, dogmatic, common-law rule that requires technical accuracy in the form of tax assessments. Not one word is said in either case about the power or jurisdiction of the court. ■ And we have just seen that by our revenue law, and its prototype, the Illinois revenue law of 1872-73, those common-law rules have either been abrogated entirely or greatly modified. How is it, then, that the majority of the court rely solely on these authorities to sustain their opinion on this branch of the case 1 The language of the opinion on this point, after quoting approvingly these authorities, is: “We must conclude that the term fixed by law must mean the regular term as fixed by the statute. ” Here, again, we most respectfully dissent, and hold that a special term of court, called according to the provisions of the statute, is as much a term “fixed by law” as any regular or general term. The mode of fixing by law the term is different; that is all. In the one case the legislature fixed the term in the statute; in the other, by the presiding judge, the term was fixed by law, i. e., by authority and according to the provisions of the statute. A term fixed by law means a term determined upon
But says the opinion: “All the tax-payers are presumed to know the regular terms of court.” Of course, they are supposed to get this knowledge from the statute. Is the statute fixing the regular terms of court the only portion of that repository of law that delinquent tax-payers are presumed to know? Are they not equally presumed to know the other provisions of the statute, especially those providing for special terms ? But again says the opinion: ‘ ‘ Special terms are held in the discretion of the judge.” Well, has the delinquent tax-payer any cause of complaint? He is presumed to know the law. He knows that that law provides that, whenever in the judgment of the presiding judge public justice demands it, special terms of the district court may be held for the trial of any sort of eases and the transaction of any sort of business. He knows his taxes are overdue; that public justice demands that he should pay his taxes as well as the rest of his fellow citizens. He knows that public justice demands that, if he is to be shielded with the protection of the government, he should be burdened with and should pay his share of taxes to support the government. He knows, or ought to know, that protection and taxation are correlative rights. Has not the revenue law been just to him ? Does it not provide that if the tax-payer is-dissatisfied with the taxes assessed against him he may appeal to the board of equalization? Was not that privilege allowed and embraced in the case at bar ? If the court was speaking of tax-payers before they became delinquent, it seems to us there would be more force in the opinion. It
Our conclusion, therefore, is that as the court had unquestionable authority to hold the special April term, 1888, of the Apache County district court; that, as at said term it had plenary power and jurisdiction, not only as a court of general jurisdiction, but from the broad and unlimited grant of power in the statute authorizing such terms to render any sort of judgment, civil or criminal, including tax judgments, or transact any sort of business, civil or criminal, including tax business; and that as said special April term, 1888, was the term next ensuing, following, or coming after the due completion of the statutory notice to delinquent taxpayers, it alone was the legal and proper -term at which the tax-collector should have applied for his tax judgment; and that the proceedings of the court in the tax suit were coram yodice. The law being peremptory in requiring the tax collector to apply for judgment at the first term coming after
In the next place, the court, in their opinion say: “Conceding, though, that the next ensuing term meant the special April term of the district court, the record must affirmatively show the authority by which the special term was held.” We most respectfully, but solemnly, deny this proposition also, and hold that the law conclusively presumes the special term to have been properly held till the contrary be made to appear. The district court of Apache was and is as much a court of general jurisdiction at a special term as at a general term. There are no words of limitation as to its jurisdiction at a special term, contained in any law or statute; nor is its power limited in any degree differently at a special term from what it is at a general term; and therefore the same presumptions as to jurisdiction and the regularity of its proceedings at a special term must he indulged as at a regular term. In either case, its proceedings are to be according to the course of the common law, modified only by statutory limitation. It is everywhere and always a court of general jurisdiction. Of course, it would be competent for a defendant to show affirmatively that the court had not acquired jurisdiction of his person, for instance; but the onus probandi would be on him, and until he made the requisite proof the presumption would hold that the court had jurisdiction. Let it be observed that it would be as competent for him to make such affirmative proof at a regular term as at a special term, and vice versa,. It is a misapprehension to suppose that, because the term of the court is a special term, its proceedings are necessarily special. Some of its proceedings might be special; so might they be at a general term. ■ If tax suits are special proceedings, they are not less so because had at a general term. The truth is the law contemplates that court proceedings at a special term shall be as general as at a regular term; for special terms are held for the trial of civil and criminal causes, and for the transaction of civil and criminal business generally or either. This language would certainly compass all the purposes for which regular terms are held. The legislative will is thus clearly revealed, that the proceedings of a special
The district court of Apache County at its special April term, 1888, being a court of general jurisdiction, the presumption of law is in favor of the regularity of its said term until the contrary is made to appear. If the opinion is correct in this regard, we have this singular condition of affairs : That if a hundred civil and criminal cases are to be tried at a special term of the district court, each trial will he void, unless the record of each case contain a recorded copy of the order of the judge calling the special term, and also a recorded copy of the notice thereof, published by the clerk upon the order of said judge in some newspaper in the county where the term is to be held. This is necessarily so, because the court speaks of the “record.” It means the record of the tax suit, no other record being before it, and that record must affirmatively show, etc.; and therefore what it means to say is that the record of this particular ease, as well as all others tried at that term, must affirmatively show that the said order and notice were given, and the only way that these facts can be made to judicially appear, is to record the said notice and order in each case. The record of each .case stands alone, so that a hundred cases having been tried, the order and notice would have to be recorded a hundred different times. Can this be law? Can this be essential to the jurisdiction of the court ? Now, the statute providing for special terms does not require that either the order or notice be filed or recorded by the clerk. It does require that the order be made and the notice given.
Does not this exactly cover the case at bar? But even if it were a fact that the clerk gave no notice of the special April term, 1888, at all, the above authority settles the law that the proceedings of the court would not have been thereby invalidated. It says further: “The proceedings of the court, without such notice were not void. The statute providing for it is merely directory, and such notice is not considered an essential prerequisite to confer jurisdiction.” See Friar v. State, 3 How. (Miss.) 422.
“But it is contended that if the district court, which rendered the decree, did possess general jurisdiction, it acted in the partition proceedings under special authority conferred by the statute, and was consequently quoad hoc an inferior or limited court. The requirements of the statute, so far as they are especially substituted for equity and common-law proceeding, are paramount, but, beyond such special substitution, law and chancery interpose with unabated and general concurrent authority. Hence we conclude that, even in eases in partition under our statute, the district court cannot be considered quoad hoc as inferior or limited. The doctrine will not be questioned that the general jurisdiction of a court cannot be taken away, unless by express words of exclusion. As the record comas from a court of general jurisdiction, it did not become necessary to incorporate into it a copy of the notice or the proof of publication. Without these the record would have been sufficiently authentic and conclusive. The authority of the court over the subject-matter and over the parties and she correctness of the proceedings would have been favored by all the force of legal presumption.”
But that great supreme court which gave such lucid and conclusive construction to the Arizona revenue law, while yet it was the revenue law of Illinois, has, it seems to us, put this question beyond the line of discussion. In the case of Teerney v. People, 81 Ill. 411, Mr. Justice Sheldon says: “It is unnecessary that the order calling a special term of the circuit court should be set out in the record.
Rehearing
ON REHEARING.
The petition for a rehearing in this case must be denied. The questions presented thereby were fully argued by counsel and considered by the court in the former hearing. It evidently seeks to discuss with the court rather the reasons for the conclusion than the decision itself. The purpose of a rehearing is not to give an opportunity to reopen the whole case for a new discussion. It is simply an opportunity, out of abundant caution, for the court to correct any misapprehension of the record, or' any oversight or omission that may have been inadvertently made. Copper Co. v. Copper Co., 2 Ariz. 169, 11 Pac. 396; Sauls v. Freeman, 24 Pla. 225, 4 South. 577; Hannan v. Grizzard, 99 N. C. 161, 6 S. E. 93; Elliott v. Cale, 113 Ind. 383, 14 N. E. 708, 16 N. E. 390; Shreveport v. Holmes, 125 U. S. 694, 8 Sup. Ct. Rep. 1389. However, after a careful consideration of the case, we must adhere to our decision rendered. Our attention is called to the view expressed that the record must show that the special term was called according to law, and it is urged that, as the proceedings of courts of general jurisdiction are presumed to be regular,' we must presume that this proceed
Again, it is urged that the collection of taxes is not a “special proceeding.” It is idle to stumble over words. It is a proceeding in rem. It is the creature of statute. Service is made in a manner provided for by law, and no personal service is required. Bach step in the cause is pointed out. What evidence is required, also. It is summary in its
Porter, J., concurs.