Gustaveson v. Dwyer

• Decision Date: 08 January 1915
• Docket Number: 11518.
• Citation: 145 P. 458,83 Wash. 303
• Parties: GUSTAVESON v. DWYER.
• Court: Washington Supreme Court

145 P. 458

83 Wash. 303

GUSTAVESON v. DWYER.

No. 11518.

Supreme Court of Washington, En Banc.

January 8, 1915

On rehearing. Overruled and judgment affirmed.

For former opinion, see 78 Wash. 336, 139 P. 194.

Garvey Kelly & MacMahon, of Tacoma, for appellant.

A. O Burmeister and Gordon & Remann, all of Tacoma, and W. V Tanner, Scott Z. Henderson, and L. L. Thompson, all of Olympia, amicus curiae, for respondent.

PARKER J.

This case is before us upon rehearing. It was decided in respondent's favor on February 28th last by department 2 of the court, upon the theory that the adverse possession upon which appellant rests his claim to the land involved did not sustain his claim of title because ten years had not elapsed since title to the land was in the county by virtue of the county having purchased it at tax sale for want of another purchaser, though appellant may have been in actual possession of the land since the purchase thereof by the county at tax sale more than ten years prior to the commencement of this action; and that the county purchased and held title in trust for the state as well as for the county and municipalities which were entitled to share in the tax for which the county purchased the land thus preventing the statute of limitation from running in favor of appellant while title to the land was in the county. Gustaveson v. Dwyer, 78 Wash. 336, 139 P. 194.

In the department decision, certain sections of our revenue statutes were noticed, from which the conclusion was drawn that, upon the purchase of the land by the county, the proceeds of sale thereof to be thereafter made by the county were by law required to be distributed to the state, as well as the municipalities entitled to the tax, for which the county was by law compelled to purchase the land for want of another purchaser. The trust relation which the department decision assumed existed between the county and the state upon the purchase of the land by the county was rested upon these provisions of our revenue statutes alone; and upon this theory, the state being held to be a beneficiary having an interest in the land, the adverse possession of appellant was of no avail to him while the land was so held by the county, because the statute of limitation does not run against the state. Certain other sections of the revenue statutes are now called to our attention which lend some support to the present contention of counsel for appellant that this view of the statute entertained by department 2 was erroneous. However this may be, further consideration has led us to the conclusion that there is a broader view of the relation of the state to the title of the land thus purchased by the county in pursuance of the statute at tax sale for want of another purchaser, which must control the question of adverse possession here presented.

While our general statute of limitations applies to actions by or for the benefit of counties and other municipalities (Rem. & Bal. Code, § 167), it has been held that the statute does not apply as against a municipality so as to permit the acquisition of title by adverse possession to a portion of a street within the municipality. West Seattle v. West Seattle Land & Improvement Co., 38 Wash. 359, 80 P. 549. 'The better rule seems to be that, where a municipality seeks to assert rights which are of a public nature and such as pertain purely to governmental affairs, the exemption in favor of sovereignty applies, and the statute of limitations will not constitute a bar, unless it is expressly so provided. But, in all other respects, counties, cities, and other municipal subdivisions are governed by the statute as fully and to the same extent as individuals.'

Upon this principle the decisions of this court in O'Brien v. Wilson, 51 Wash. 52, 97 P. 1115, and State v. Seattle, 57 Wash. 602, 107 P. 827, 27 L. R. A. (N. S.) 1188, are rested, although those decisions involved the question of the general statute of limitations running against the state direct, at a time when the statute was in terms applicable to the state. It was there held that adverse possession could not impair the title of the state to school and university lands, upon the theory that such lands were held by the state for a specific public purpose, and not in a mere proprietary capacity.

We regard the vital question here to be: Does the county hold land, acquired by purchase at tax sale for want of another purchaser, in a governmental capacity, as distinguished from a proprietary capacity? since it is plain the statute would not run against the county in the former instance but would in the latter.

Looking to the power in the exercise of which the county's title to this land originated, we are constrained to hold that the county did not acquire or hold the land in a proprietary capacity but in a governmental capacity. The land is not acquired by the county voluntarily, but in the exercise of a mandatory duty prescribed by the state and in the exercise of the sovereign power of taxation. Rem. & Bal. Code, § 9268. It acts in effect as the agent of the sovereign, even though its action is largely for the benefit of the people of the county and the municipalities entitled to share in the tax for which the county is compelled to purchase the land for want of another purchaser. By the greater weight of authority it is held that a general statute of limitations, though it may be in terms applicable to counties and other municipalities, will not bar the right of such municipality to enforce the collection of taxes. These holdings rest upon a principle which we regard as controlling here, although no decision has come to our notice dealing with the application of a statute of limitation to the exact situation here involved. In Port Townsend v. Eisenbeis, 28 Wash. 533, 551, 68 P. 1045, 1051, Judge Anders, speaking for the court, said:

'An action to recover a tax is an action to enforce a public right. And it has been held that the statute of limitations does not affect such actions, although it may be applicable to actions to enforce private rights. Greenwood v. La Salle, 137 Ill. 225, 26 N.E. 1089; Black, Tax Titles, § 164. See, also, Sims v. Frankfort, 79 Ind. 452, and 2 Dillon, Municipal Corporations, § 673.'

That decision, however, was rested largely upon certain provisions of the special charter of Port Townsend.

In Osawatomie v. Miami County, 78 Kan. 270, 96 P. 670, 130 Am. St. Rep. 369, there was involved a claim of the city against the county for funds, the proceeds of taxes, which had been collected by the county for the city and not accounted for. The county invoked the general statute of limitations which apparently by its terms was applicable to counties and cities in that state. Disposing of this contention in holding that such statute had no application, Justice Mason, speaking for the court, said:

'Inasmuch as the city exists in part as an agency of the state for general governmental purposes, and its maintenance depends upon its power to levy and collect taxes, it might be argued that the state itself, or the general public, has an interest in protecting the exercise of that power. But the same argument might apply, although with less force, to the prosecution of any money demand, upon the ground that the purpose of enforcing it is to aid in meeting the expenses of maintaining the municipality. We think the more vital consideration has relation to the character of the power in exercise of which the demand originates. The power of taxation is an essential attribute of sovereignty. This is true no less of taxes levied by minor political divisions than of those directly imposed by the state. 27 A. & E. Encycl. of L. 620. No statute of limitation should apply to any step in the exercise of that power, unless a legislative intention that it should do so is expressly stated or appears by the clearest implication.'

In Greenwood v. Town of La Salle, 137 Ill. 225, 26 N.E. 1089, an action to recover taxes where the general statute of limitation was invoked as a defense, which by its terms was applicable to cities and towns Justice Wilkin, speaking for the court, said:

'The question to be determined in this case is, therefore: Does appellee here seek to enforce a private right? This question, we think, must be decided in the negative. A town, under our township organization system, is but a civil division of a county, and exists as a municipal corporation merely for the purposes of carrying on the state government. It can only levy and collect taxes for the purpose of carrying on that subdivision of such government. It must be admitted that town taxes may be levied for purposes in which the public, generally, are directly interested, such as 'constructing or repairing roads, bridges or causeways,' within the town. Rev. Stat. c. 139, art. 4, § 40; City of Alton v. Illinois Transportation Co., 12 Ill. 38 . Other improvements may also be lawfully paid for out of a town tax, in which the public at large have as much interest as those residing within the boundaries of the township. We entertain no doubt that the right here sought to be enforced is of such a public nature that no statute of limitations could be interposed against it.'

In Wasteney v. Schott, 58 Ohio St. 410, 415, 51 N.E. 34, where a general statute of limitation was invoked in defense of an action to collect taxes, the court, in holding such statute not applicable to such cases, observed:

'When the action, though brought in the name of the state, is prosecuted for the enforcement of some private or individual right, and the state has no substantial interest in the litigation, the plea of the statute may be interposed. On the other hand, if the state is the real party in interest, the plea of

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