Douglas v. Richards

• Decision Date: 17 October 1901
• Citation: 87 N.W. 600,10 N.D. 366
• Court: North Dakota Supreme Court

87 N.W. 600

10 N.D. 366

FLORA R. DOUGLAS v. RICHARD O. RICHARDS et al

Supreme Court of North Dakota

October 17, 1901

Appeal from District Court, Cass County; Pollock, J.

Action by Flora R. Douglas against Richard O. Richard and others. From a part of the judgment, plaintiff appeals. Affirmed.

Judgment affirmed, and Costs awarded to the respondents.

J. E Robinson, for appellant.

The sales for the year 1896 were not authorized by law. They were under the revenue law of 1897, which contemplates sales only for taxes levied under that law. § 74, Ch. 126, Laws 1897. Section 77 gives the form of a certificate to be issued, and the sale of the land for taxes, and the former recites that the land was sold for taxes. A certificate of sale, to be valid, must show on its face that the land was sold for delinquent taxes. Sheehy v. Hinds, 27 Minn 259, 6 N.W. 781; Sherburn v. Ritt, 35 Minn. 540, 29 N.W. 322;; Gilfillan v. Chatterton, 38 Minn. 335, 35 N.W. 583. The revenue law of 1897 was enacted before the taxes for the year 1896 became delinquent, and expressly repealed those sections of the Revised Codes which provide for the sale of delinquent taxes, and which fixed the time when the tax should become delinquent. Wells Co. v McHenry, 7 N.D. 246-267. If the law did authorize a sale, yet the sales were void because they were not made under the direction of the board of county commissioners, and because the notice of sale was not published in a newspaper designated by the county commissioners. Russell v. Gilson, 36 Minn. 366, 31 N.W. 692; Cass Co. v. Security Imp. Co., 7 N.D. 528. The sales were void because there was no levy of school district taxes. § 101, Ch. 62, Laws of 1890; § 21, Ch. 56, Laws 1891; § 721, Rev. Codes. The state tax levy was void because the state board of equalization had no power to levy the same. Willis v. Austin, 53 Cal. 178; Parker v. Rowe, 54 Cal. 235; Houghton v. Austin, 46 Cal. 648. The sale is void because made for an excessive, illegal and unauthorized tax. Case v. Dean, 16 Mich. 12; Treadwell v. Peterson, 51 Cal. 637; Harper v. Rowe, 53 Cal. 152; Kimball v. Ballard, 19 Wis. 634; Barden v. Supervisors, 33 Wis. 447; Barber v. Supervisors, 39 Wis. 447; Cooley on Taxation (2 Ed.) 497. The date when the taxes of 1896 should have become delinquent was fixed by § 1238, Rev. Codes, as the first day of June after the tax became due. That section was expressly repealed by § 110, Revenue Law, 1897. McHenry v. Wells Co., 7 N.D. 246-267. If the taxes are valid, their validity must be made to appear by common law proof. The burden is upon the purchaser. O'Neil v. Tyler, 3 N.D. 47. The state tax levy has not been legalized by Ch. 159, Laws 1901. Dever v. Cornwall, 10 N.D. 123, 86 N.W. 229.

Newton & Smith, for respondents.

This case is appealed under § 5630, Rev. Codes, but there are no questions of fact sufficiently specified to secure a review in this court. Douglas v. Glazier, 9 N.D. 615, 84 N.W. 552; Ricks v. Bergsvendsen, 8 N.D. 578, 80 N.W. 769; Hayes v. Taylor, 9 N.D. 92, 81 N.W. 49. Section 74, Ch. 126, Laws of 1897, does not justify the contention that all provisions relating to the taxes of 1896 are repealed. Section 74 is general, and clearly relates to all taxes. State v Moorehouse, 5 N.D. 406, 67 N.W. 140 The act of 1897 did not wipe out, remit or destroy the taxes levied prior to the date of its passage. Such taxes continued thereafter, and still continue and survive as taxes, and they are a lien upon the real property upon which assessed. § 1239, Rev. Codes; Gardenhire v. Mitchell, 21 Kans. 83; State v. Savings Bank, 68 Me. 515. The fact that the twenty cent fee authorized by § 74, page 284, Laws 1887, to be added to each description when advertised, was added as a penalty, does not destroy the publication. The mere fact of designating by a wrong name an imposition authorized by statute will not destroy the sale. Drennan v. Beierlein, 13 N.W. 587.

OPINION

WALLIN, C. J.

This action is brought to quiet title in the plaintiff to the real estate described in the complaint, situated in the county of Cass. It is conceded that plaintiff is the fee-simple owner of the lands. The lands were sold in 1897 for certain taxes charged against them on the tax list of 1896. Tax certificates were issued pursuant to said tax sales, and the same are now owned by the three defendants last named in the title of this action. The trial court adjudged, among other things, that the taxes of 1896, as charged against said lands on the tax list of Cass county, were legal and valid taxes, and that the sales for said taxes were regular, and that said tax certificates were in all respects regular and valid. Plaintiff has appealed to this court from a part of said judgment only, viz. that part of the same which sustains said taxes of 1896 and said tax sales and certificates.

Appellant caused a statement of the case to be settled which embodies all the evidence offered at the trial relating to said taxes of 1896 and the sales for said taxes made in 1897; but said statement does not purport to contain all the evidence offered at the trial, nor does it contain any request for this court to retry the entire case. As to the question to be retried in this court the statement embraces the following requests and no others: "And the appellant desires the Supreme Court to review each and every question of fact and of law which in any way or manner pertains to the tax of 1896 and the sale of said land for the taxes of that year, and to retry the entire case so far as it pertains to the taxes and tax sales for the year 1896." The plaintiff and appellant requests the Supreme Court to review the following questions of fact concerning the tax of 1896: "(1) Were the town taxes of the town of Raymond legally levied? (2) Were the taxes of school district No. 23 of the town of Raymond legally levied? (3) Was there a legal levy of the school-district tax, the town tax, and the road tax charged against said quarter section in the town of Berlin; that is, in town 141 of range 50? (4) Was there a legal levy of the state taxes? (5) Was the said land sold for the taxes of the year 1896 under the direction of the board of county commissioners of Cass county, and was the notice of sale published in a newspaper designated by a resolution of the board of county commissioners of Cass county, and was there in Cass county, in the year 1897, any newspaper called the 'Fargo Argus'? (6) Did the law authorize a sale of said land or of any land for the taxes of the year 1896, and was the sale of said land for the taxes of the year 1896 legal and valid? Was the sale made for a valid tax? (7) And the appellant desires the Supreme Court to review every finding of fact made by the trial court which in any way pertains to the tax of the year 1896, and the sale of said land for such taxes, and to review each and every other question of fact and of law which in any way pertains to the validity of said taxes, and to the validity of the sale of said land for the taxes of the year 1896, and to retry every question of fact and of law which in any way pertain to such tax or to such tax sale. And appellant demands that said tax and tax sale be declared and adjudged to be void."

It is the contention of counsel for the respondents that each and all of the foregoing requests embody a demand for the determination of a question of law, and only a question of law, and that none of the same call for the determination of any question of fact. With respect to this contention of counsel this court finds little difficulty in reaching the conclusion (except as to question numbered 5 in the list which will be separately considered) that the contention is sound and must be sustained. Each and all of the questions in the list, except that numbered 5, in our opinion, are obnoxious to one and the same criticism, i. e. they each and all call for the determination of a question of law. We think the correctness of this view as to the nature of the several questions asked will be made clear by a brief consideration of question numbered 1 of said list. Question numbered 1 is as follows: "Were the town taxes of the town of Raymond legally levied?" We think it is too clear for discussion that no intelligent answer can be given to this question, obviously one of pure law, until certain facts are developed, and found to exist or not to exist. Whether any tax charged on the tax list of 1896 has been legally levied or assessed can be ascertained only by an inquiry as to what acts have been done and what acts have been omitted to be done by the official or officials clothed with authority to assess or levy the tax. From the nature of the law question to be determined, a preliminary inquiry as to official acts done or omitted becomes indispensable as a basis of decision. Again reverting to the language of question No. 1, we discover that the same does not in any way call upon this court to inquire or determine whether the officials of the town of Raymond have acted or attempted to act, or omitted action, in or about the matter of levying the tax in question. Much less does the question attempt to "specify" any particular act or omission of said officials with respect to such tax, and call upon this court to determine the same. On the contrary, no question of fact whatever is either asked or suggested by said question. This court in deciding cases only too frequently has had occasion to iterate and reiterate the declaration that it derives its authority to try issues of fact anew from the statute now embraced in § 5630 of the Revised Codes of 1899, and that this court is without authority to retry questions of fact, and will not do so in any case where the appellant fails to conform substantially to the...