Danforth v. McCook County

• Decision Date: 18 October 1898
• Citation: 76 N.W. 940,11 S.D. 258
• Parties: F. C. DANFORTH, Plaintiff and respondent, v. McCOOK COUNTY et al., Defendant and appellant.
• Court: South Dakota Supreme Court

11 S.D. 258

76 N.W. 940

74 AmStRep 808 (1898)

F. C. DANFORTH, Plaintiff and respondent, v. McCOOK COUNTY et al.,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, McCook County, SD

Hon. Joseph W. Jones, Judge.

Reversed

M. A. Butterfield

Attorneys for appellants.

A. C. Biernatzki

Attorneys for respondent.

Opinion filed Oct. 18, 1898

CORSON, P. J.

In 1880 one Kemis entered a timber claim in McCook county, and in 1890 received his final receipt, and in 1893 a patent for the same. After the issuance of a patent Kemis sold and transferred the property to the plaintiff. During the years from 1882 to 1892, inclusive, personal property taxes were assessed against said Kemis, of which only the taxes assessed for the year 1886 were paid. In 1896 the county auditor brought forward these delinquent personal taxes against Kemis, and advertised and sold the real property so entered as a timber claim for the same, together with the real-estate taxes on said real property for the year 1895, for the sum of $344.65, arid issued to the county a certificate of sale therefor. The plaintiff, claiming that the real property was only liable for the real-property tax for 1895 and the personal taxes assessed against Kemis for the year 1893, amounting to $49.65, tendered that sum to the county treasurer, who refused to accept the same. Thereupon plaintiff brought this action to compel the treasurer to accept said sum and for a cancellation of said certificate of sale.

The court concluded, as matter of law:

“(1) That the personal tax of Thomas Kemis for the years 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, and 1891 are not and never were a lien or liens upon the premises described in the complaint.

“(2) That the sale of the premises mentioned and described in the complaint, and for which the certificate of sale in this action was issued, so far as the said sale was for the satisfaction or collection of personal taxes for the years mentioned in paragraph 1 of these conclusions of law, is null and void. …

“(4) That at the time of the treasurers’ sale mentioned in the complaint, on November 5, 1896, the said real estate sold was not liable for the satisfaction of any taxes. except the taxes assessed against the same for the year 1895, and the personal tax of Thomas Kemis for the years 1892 and 1893.”

Judgment was thereupon entered for the plaintiff that, upon payment of $49.65 and $8.65 for personal taxes assessed against said Kemis for the year 1892, the certificate be canceled. From this judgment and order denying a new trial the defendants appealed.

The learned circuit court evidently took the view that, as the property was a timber claim, the personal property taxes assessed against Kemis prior to the issuance of the patent therefor never became a lien thereon under the provisions of Section 4, Chapter 190, Laws US 1878, which reads as follows: “That no land acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the final certificate therefor.” 20 Stat. 114. The appellants contend that, upon the issuing of the final certificate, the land became the property of Kemis, and that personal property taxes not being debts within the meaning of the statute, the lien for these taxes assessed to said Kemis, immediately attached to the property. The respondent insists that though a “tax” may not in its ordinary acceptation be a “debt” it clearly comes within the meaning of the term “debt or debts,” as used in that section, and that the section must be so construed to carry into effect the manifest intention of congress in making the provision. This court held in Iowa Land Co. v. Douglas Co., 67 NW 52, that a “tax” is not a “debt” in the ordinary sense in which that term is used, but is a charge or burden imposed upon. the property for the benefit of the public, and we are of the opinion that they are not “debts,” within the meaning of this statute. The term “debt” while not having a very clearly-defined meaning in the law, has never, so far as our research extends, been held to include taxes. The author of the subject of “Taxation” in the American and English Encyclopaedia of Law says:

“A tax differs from an ordinary debt in that its obligation does not depend upon contract. Generally, in the absence of statute, the collection of a tax is not enforceable by an action of debt; nor; in the absence of statute, does it carry interest; nor is it the subject of set-off against an indebtedness of the taxing district to the taxpayer; nor is its nature as a tax affected by the fact that the statute authorizing its imposition authorizes the institution of an action for its recovery. Taxes are not assignable as debts; nor are they provable in bankruptcy as such, nor are they within the purview of statutes relating to imprisonment for debt. And the repeal of a statute imposing a tax is not within the meaning of constitutional provisions against the passage of laws impairing the obligation of contracts.”

25 Am. & Eng. Enc. of Law, p. 12. In support of these propositions, the learned author cites a large number of authorities, only two of which we deem it necessary to notice. In Meriwether v. Garrett, the supreme court of the United States says:

“Taxes are not debts. It was so held by this court in the case of Lane Co. v. Oregon, reported in 7 Wall. 71. Debts are obligations for the payment of money, founded upon contract, express or implied. Taxes are imposts levied for the support of the government, or for some special purpose authorized by it. The consent of the taxpayer is not necessary to their enforcement. They operate in invitum. Nor is their nature affected by the fact that in some states—and we believe in Tennessee—an action of debt may be instituted for their recovery, The form of procedure cannot change their character. City of Augusta v. North, 57 Me. 392; City of Camden v. Allen, 26 NJ Law, 398; Perry v. Washburn; 20 Cal. 318.”

In the case of Lane Co. v. Oregon, 7 Wall. 71, referred to in the foregoing opinion, the question of whether or not tree term “debt” included a tax was so fully considered and discussed that we quote quite fully from the opinion. In that case the court says:

“What, then, is its true sense? The most obvious, and, as it seems to us, the most rational, answer to this question is that congress must have had in contemplation debts originating in contract or demands carried into judgment, and only debts of this character. This is the commonest and most natural use of the word. Some strain is felt upon the understanding when an attempt is made to extend it so as to include taxes imposed by legislative authority, and there should be no such strain in the interpretation of a law like this. We are the more ready to adopt this view because the greatest English elementary writers upon law, when treating of debts in their various descriptions, give no hint that taxes come within either (1 Bl. Comm. 475, 476;) while American state courts of the highest authority have refused to treat liabilities for taxes as ‘debts,’ in the ordinary sense of that word, for which actions of debt may be maintained. The first of these cases was that of Pierce v. City of Boston (1842) 3 Mete. (Mass.) 520, in which the defendant at tempted to set off against a demand of the plaintiff certain taxes due to the city. The statute allowed mutual debts to be set off, but the court disallowed the right to set off taxes. This case went, indeed, upon the construction of the statute of Massachusetts, and did not turn on the precise point before us but the language of the court shows that taxes were not regarded as ‘debts,’ within the common understanding of the word. The second case was that of Shaw v. Peckett, 26 Vt. 486, in which the supreme court of Vermont said: ‘The...