Biles v. Robey, Civil 3406

• Decision Date: 12 March 1934
• Docket Number: Civil 3406
• Parties: DAVID H. BILES, County Treasurer and Ex-officio Tax Collector of Yavapai County, State of Arizona, Appellant, v. W. F. ROBEY, Receiver, Appellee
• Court: Arizona Supreme Court

30 P.2d 841

43 Ariz. 276

DAVID H. BILES, County Treasurer and Ex-officio Tax Collector of Yavapai County, State of Arizona, Appellant, v. W. F. ROBEY, Receiver, Appellee

Civil No. 3406

Supreme Court of Arizona

March 12, 1934

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Mr Arthur T. La Prade, Attorney General, Mr. Charles L. Strouss Assistant Attorney General, and Mr. John A. McGuire, County Attorney, for Appellant.

Messrs Favour & Baker, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal by David H. Biles, as county treasurer and ex-officio tax collector of Yavapai county hereinafter called defendant, from a judgment of the superior court of that county, commanding him to accept from W. F. Robey, as receiver of the Head Hotel Company, a corporation, hereinafter called plaintiff, a certain sum of money tendered to defendant by plaintiff, as taxes due on the property of said hotel company for the year 1928. Judgment went in favor of plaintiff, and defendant has brought this case before us for review.

The facts are not in dispute, and the only matter involved is the meaning and constitutionality of chapter 72 of the Session Laws of 1933. The real questions are, did the legislature, by chapter 72. supra, remit the interest and penalties which had accrued on delinquent taxes previous to June 1, 1933, under certain circumstances as set forth in the chapter, and, if it did, was such remission constitutional?

We consider, first, the interpretation of the chapter. It is entitled,

"An Act relating to the sale of property for delinquent taxes, and amending Section 18, Chapter 103, Session Laws 1931. . . ."

And upon its face shows that it is only meant to amend one section of chapter 103, Session Laws 1931, by making an addition thereto. Upon examining said chapter 103 it is apparent that it is divided into two portions, sections 1 to 14 thereof providing for a survey of the taxable property of the state, while sections 15 to 56, inclusive, set forth a complete procedure for the collection of delinquent taxes. The two portions of the chapter are clearly severable in their nature, and a referendum petition was duly filed against the first fourteen sections. We held that these provisions were subject to a separate referendum. Warner v. White, 39 Ariz. 203, 4 P.2d 1000. No referendum was invoked against the remaining sections of the act, which dealt only with the procedure for the collection of delinquent taxes, and they went into effect ninety days after the adjourment of the tenth legislature.

Previous to the adoption of chapter 103, supra, the collection of delinquent taxes in Arizona was regulated by article 7, chapter 75, of the Revised Code of 1928, being sections 3120 to 3138, inclusive, of that Code. The method set forth therein for collection provided for an action to be brought in the superior court, and the judgment was to the effect that the tax lien of the state should be foreclosed and the real estate, upon which the tax was imposed, sold thereunder to satisfy the judgment, interest and costs. The property was subject to redemption in the usual manner, and, generally speaking, the procedure, after judgment, was the same as in the ordinary sale under a special execution. Section 3122, supra, provided:

" . . . All taxes shall bear interest from the time of delinquency at the rate of ten per cent per annum until paid, and a fraction of a month shall be counted as a whole month."

In addition thereto, certain fees were permitted to be charged by various officials for the collection of the taxes made in this manner.

Chapter 103, supra, substituted for the method of suit and sale, provided in the Revised Code of 1928 an entirely different system. On comparison of sections 15 to 56, inclusive, of that chapter, with article 7 of chapter 75, supra, it is evident that the legislature meant to re-enact, in substance, the provisions of the 1928 Code in regard to everything, including the interest on delinquent taxes, which appeared in the 1928 Code, except the manner of their collection. Instead of the county itself obtaining a judgment foreclosing the tax lien, and selling the property thereunder, the property was sold at public auction to the best bidder, that term being defined in section 25 of the chapter.A certificate of purchase was delivered to the purchaser, and, if the property was not redeemed within three years from the date of sale, the holder of the certificate brought suit to foreclose the right of redemption, as in case of a mortgage. If he did not desire to follow this method, he might, by waiting five years, receive a treasurer's deed.

Section 18 of chapter 103, supra, is the only part of that chapter which was amended by chapter 72, supra. Such amendment consisted, in effect, of merely adding to the section as it existed, the following language:

"(b) All taxes now levied against real property which shall be delinquent on June 1, 1933, may be paid in twenty equal semi-annual instalments during and within a period of ten years, beginning on the first Monday in November, 1933, provided that such real property taxpayer at the time of any such semi-annual due date shall not then be delinquent in the payment of any current state, county, city or town tax levied after the date of the passage and approval of this act against the property involved. Where not supplied by existing records, county treasurers shall provide lists of taxpayers in their respective counties entitled to proceed as provided in this act, and shall compute the amount of delinquent taxes in their respective counties falling electively within the purview of this act. The amount or amounts of any such taxes so delinquent on said date of June 1, 1933, upon which the taxpayer shall elect to pay the taxes as provided herein, shall bear interest at the rate of 6% per annum. Any taxpayer may pay the entire amount or amounts due at any time, and if so paid the interest shall be computed only to the date of payment.If any taxpayer, having elected to comply with the provisions of this act, shall become delinquent in two or more of such semi-annual payments, then the entire amount of such delinquent taxes shall become due, and the county treasurer shall proceed with the sale of such property, as provided in paragraph (a) of this section. The taxes on any real property which shall have been advertised or sold for taxes prior to June 1, 1933, and upon which the period of redemption shall not have expired, may, except where sale has been made to private persons and certificate of purchase issued, be paid within the times, under the conditions, and in the manner herein provided for the payment of taxes delinquent on June 1, 1933, and the period of redemption on any such real property is hereby extended accordingly. A compliance with the terms hereof by a purchaser of real estate at a foreclosure sale shall be a sufficient compliance with the terms of section 3116 of the Revised Code of 1928 as to entitle such purchaser to a certificate of purchase, and to a deed thereto upon the expiration of the period of redemption, in the event such property is not redeemed." (Italics ours.)

All other portions of chapter 103, including the section which contained the provision that taxes should bear interest from the date of delinquency at the rate of 10 per cent. until paid, remained in full force and effect.

We must therefore consider the meaning of the added language of chapter 72, supra, taking into consideration chapter 103, for there is no repealing clause in chapter 72, and it is the rule that when a law is amended by adding thereto, all portions of the law are to be given effect, if possible, and only those earlier portions which cannot be reconciled reasonably with the later and added enactment are considered as repealed. Lagoon Jockey Club v. Davis County, 72 Utah 405, 270 P. 543; City of Tombstone v. Macia, 30 Ariz. 218, 245 P. 677, 46 A.L.R. 828; Rowland v. McBride, 35 Ariz. 511, 281 P. 207.

On examining the provisions added by chapter 72, to section 18 of chapter 103, it appears that they provide an exception only to the time for the collection and the amount to be collected of certain delinquent taxes, and not a new general method of collection. They are expressly limited to taxes which are delinquent upon June 1, 1933, and provide such taxes may be paid in a different manner from that provided for taxes of every other class. Under the general law, taxes are payable in two semi-annual installments, and the collecting agency may not accept less than the full amount of tax due for such installment, plus the interest fixed by law upon any delinquency. The new chapter provides that any of the specified delinquent installments may be paid in twenty equal payments over a period of ten years, if the delinquent taxpayer shall so elect, provided that he at all times keeps subsequent taxes paid without delinquency. It is made the duty of the treasurer to compute the amount of the delinquent taxes, which come within the purview of the clause. It is then provided:

"The amount or amounts of any such taxes so delinquent upon said date of June 1st, 1933, upon which the taxpayer shall elect to pay the taxes, as provided herein, shall bear interest at the rate of 6% per annum. Any taxpayer may pay the entire amount or amounts due at any time and, if so paid the interest shall be computed only to the day of payment."

It further provides that if the taxpayer, who has "elected to comply with the provisions of this act," which presumably means by paying one of the twenty semi-annual installments referred to, "shall become delinquent thereafter in two or more of such semi-annual...