Board of County Com'rs. of Big Horn County v. Bench Canal Drainage Dist.

• Decision Date: 31 December 1940
• Docket Number: 2174
• Citation: 56 Wyo. 260,108 P.2d 590
• Parties: BOARD OF COUNTY COM'RS. OF BIG HORN COUNTY v. BENCH CANAL DRAINAGE DIST. ET AL
• Court: Wyoming Supreme Court

108 P.2d 590

56 Wyo. 260

BOARD OF COUNTY COM'RS. OF BIG HORN COUNTY v. BENCH CANAL DRAINAGE DIST. ET AL

No. 2174

Supreme Court of Wyoming

December 31, 1940

APPEAL from the District Court, Big Horn County; P. W. METZ, Judge.

Action to foreclose a tax lien by the Board of the County Commissioners of Big Horn County, Wyo., against the Bench Canal Drainage District and A. R. Kelley. From the decree the Bench Canal Drainage District appeals.

Modified and affirmed.

For the appellant, the cause was submitted on the brief of E. J Goppert of Cody.

The action was apparently brought pursuant to the provisions of Chapter 84, Laws 1935, as amended by Chapter 84, Laws 1937. There was no evidence of any delinquent taxes legally levied for any year prior to 1927. There can be but one sale for general taxes at any one time, which should include the taxes for the preceding year or years. Sec. 115-2304, R. S. as amended by Chapter 100, Laws 1937. The procedure in making three separate sales was unauthorized by law. Tax titles rest upon the rule of caveat emptor. Brewer v. Folsom Brothers Co., 43 Wyo. 433. All taxes not collected for a period of ten years from the time they have been levied are uncollectible. Sec. 115-2346, R. S. This would leave only taxes for the years 1929 to 1939 to be included in respondent's lien. The law fixing penalty and interest on delinquent taxes has been amended several times. Chapter 70, Laws 1923; Secs. 115-2301, 2303; Chapter 123, Session Laws 1931. The law in effect at the time of the sale here in controversy was Chapter 72, Laws 1933. Total taxes due respondent for 1929 to 1939 inclusive aggregated the sum of $ 1507.23. The court erred in holding that respondent's tax lien was prior and superior to all liens of the appellant drainage district. 25 R. C. L. 188, 189; 61 C. J. 925, 926; McQuillin on Municipal Corporations, 2d Ed. Vol. 5, p. 794; Cooley on Taxation, 4th Ed. Vol. 3, p. 2474; 65 A. L. R 1379; Potter v. Fidelity & Deposit Co. (Miss.) 58 So. 713; Holbrook v. Koury (Ariz.) 73 P.2d 698; Smith v. Nampa (Idaho) 68 P.2d 344; Little River Drainage Dist. v. Sheppard (Mo.) 7 S.W.2d 1013; Blythe v. Pratt (Okla.) 41 P.2d 895; Ledegar v. Bockoven (Okla.) 185 P. 1097; Hunt v. City of St. Maries (Idaho) 260 P. 155; Baldwin v. Frisbie (Wash.) 270 P. 1025; Cooper v. Gibson (Calif.) 24 P.2d 952; McAnally v. Little River Drainage Dist. (Mo.) 28 S.W.2d 650; Gamet's Estate v. Lindner (La.) 106 So. 22; Indianapolis v. City Bond. Co. (Ind.) 84 N.E. 20; Turley v. St. Francis County Dist. (Ark.) 287 S.W. 196; Harris v. Little Red River Dist. (Ark.) 69 S.W.2d 877; Howie v. Panola Drainage Dist. et al. (Miss.) 151 So. 154; Miller v. Watkins, 113 A. L. R. 913; Seattle v. Bond Co. (Wash.) 217 P. 721. The Supreme Court of Michigan has adopted a rule of concurrent liens as between general taxes and city general and special tax levies. Hoffman v. Otto (Mich.) 269 N.W. 225; City of Detroit v. Sitter (Mich.) 285 N.W. 40, 41, 42. The Illinois court has held that the lien for drainage district assessments continues after sales for general taxes. Drainage Dist. v. Mansfield (Ill.) 180 N.E. 630; Ill. Rev. Stat. 1937, Chapter 24. The Supreme Court of Colorado has held that irrigation district taxes should be enforced the same as other taxes. Nile Irr. Dist. v. English, 153 P. 760. In New York, it was held that a sale for taxes by one division of the Government should not cut off and nullify sales made by other divisions of Government. Rochester v. Kapell, 83 N.Y.S. 640; Gould v. City of St. Paul (Minn.) 145 N.W. 21; State ex rel. Land Office v. Board of County Commissioners, 25 P.2d 1074; St. Louis Company v. Trust Company, 52 F.2d 431; Moore v. Gas Securities Co., 278 F. 111. The Wyoming statute makes uncollected personal taxes a lien on real estate, except as to prior valid liens. Sec. 115-2303, R. S.; 122-263, R. S. See also Section 122-886, R. S. 1931. The Wyoming Constitution provides that the state shall make good any losses which may occur in permanent school funds, so that the same shall remain forever inviolate. Section 6, Article VII, Constitution. Tax sales do not extinguish other liens. Sec. 122-886, R. S. Under that provision the liens of drainage district assessments are not extinguished.

For the respondent, there was a brief and an oral argument by C. A. Zaring of Basin.

The action was brought to foreclose the tax lien of Big Horn County against the lands described in plaintiff's petition, under Chapter 84, Session Laws 1935. The contention of appellant that the taxes for 1927 and 1928 should not have been included in the decree, because barred by the statute of limitations, provided by Section 115-2346, R. S. 1931 is untenable. Article III, Sec. 40, State Constitution; State ex rel. Kain v. Fischl, 20 P.2d 1057; Opinion of Attorney General of Wyoming, February 26, 1938; Section 122-886, R. S. 1931; Nelson v. Pitts, 53 A. L. R. 1137-39. A priority exists in favor of general taxes over special assessments. La Mesa Irr. Dist. v. Hornbeck, 17 P.2d 143; Robinson v. Hanson, 282 P. 782; In re Dancy Drainage Dist., 225 N.W. 873; Wooster v. Mahaska County, 98 N.W. 101; Sec. 122-886, R. S. The sale made under Chapter 84 of the laws of 1935 conveyed an absolute title to the purchaser. State v. Jeffries, 270 P. 638; Woodill v. Young, 182 P. 422; California Company v. Weis, 50 P. 697; Pennsylvania Company v. Tacoma, 79 P. 306.

E. J. Goppert in reply.

Appellant does not desire to cite the authorities from which quotations are made in the brief of L. A. Bowman, Amicus Curiae, in contravention of respondent's contention that Section 115-2346 is unconstitutional. Appellant concedes that the law under which bonds are issued, enters into and becomes an essential part of the contract. Amendments made to such law after the issuance of bonds become a part of the contract. Respondent claims that the case of Bosworth v. Anderson, 280 P. 227, cited by respondent, turned upon a statute similar to ours. An examination of that case shows that counsel is mistaken. The Montana case cited by respondent, State v. Jeffries, 270 P. 638, holds that a general tax lien is superior to liens for irrigation districts.

There was a brief and oral argument by L. A. Bowman of Lovell, Amicus Curiae.

There are two questions involved in the present case, which we desire to cover, to-wit: (1) Is Section 115-2346, R. S. 1931 constitutional and effective to cancel state and county taxes not collected and enforced for a period of ten years? (2) What is the effect, if any, on unpaid drainage assessments in an action brought for the foreclosure of a tax lien for general state and county taxes, and is the tax lien of the county prior and superior to the tax lien of drainage districts created by drainage assessments? With reference to question one, we suggest that the legislature may provide for the cancellation of taxes created by the legislature. Cooley on Taxation, Fourth Edition, Section 1821; Livesay v. DeArmond et al., 284 P. 166; State v. Rowe, 188 N.W. 107; State v. Montoya, 255 P. 634; Burton v. Denver, 61 P.2d 856; Baker v. Board, 73 P. 70. The drainage act was enacted by Chapter 95, Laws 1911. It contemplated the issuance of bonds to prior investors. Subsequently, Chapter 13 of the Laws of 1923 authorized the investment of permanent school funds in the bonds of school districts and amended the drainage act accordingly. Thereafter the state invested the sum of $ 2,242,951.84 in drainage and irrigation bonds and provided for their payment by assessments upon the property benefited. In Sec. 122-886, R. S., it was the apparent intention of the legislature to give these drainage district bonds equal rank with the lien of general taxes, which it had power to do. 61 C. J. 926, Sec. 1177. We submit the following authorities in support of this proposition. Gasaway v. Seattle (Wash.) 100 P. 991; North Spokane Irrigation District v. Spokane County, 22 P.2d 990; Ledegar v. Bockoven, 185 P. 1097; White v. Knowlton, 84 Minn. 141; White v. Thomas (Minn.) 98 N.W. 101; Gould v. Grout, 125 N.W. 273; Dancy Drainage Dist. v. Bond. Co., 225 N.W. 873. In conclusion, we believe that it is apparent that no serious question as to the constitutionality of Section 115-2346 can be urged with reference to the cancellation of taxes remaining uncollected for ten years. Following the rule that courts endeavor to interpret laws to express the intent of the legislature, Section 122-886 should not be construed to destroy the perpetual lien of drainage assessments by the sale of lands for general state and county taxes, particularly where the legislature has expressly stated that it shall not be extinguished.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action brought on June 17, 1939, by the Board of County Commissioners of Big Horn County against Bench Canal Drainage District, E. J. Goppert, Trustee, and East Emblem Drainage District, to foreclose a tax lien against the lands in controversy in favor of the county under the provisions of Chapter 84, Session Laws of 1935, which provides, in brief for the foreclosure of general tax liens in the manner of foreclosure of mortgages, and for sale of the property as under a mortgage foreclosure. Plaintiff claimed a lien for general taxes in the amount of $ 3951.92. The East Emblem Drainage District defaulted. The Bench Canal Drainage District claimed a lien by reason of special assessments in the district in the sum of $ 3277.85, and contended that this lien is of equal dignity with that for general taxes. The court entered a decree to the effect that the County has a paramount lien on the land in controversy in the sum of $ 3280.52, and that the defendant Bench Canal Drainage District has a lien on the...