Hamer v. Weber County

• Decision Date: 31 August 1894
• Docket Number: 517
• Citation: 37 P. 741,11 Utah 1
• Court: Utah Supreme Court
• Parties: DANIEL HAMER, COUNTY COLLECTOR, APPELLANT, v. WEBER COUNTY AND ANOTHER, RESPONDENTS. [1]

37 P. 741

11 Utah 1

DANIEL HAMER, COUNTY COLLECTOR, APPELLANT, v. WEBER COUNTY AND ANOTHER, RESPONDENTS. ^[1]

No. 517

Supreme Court of Utah

August 31, 1894

APPEAL from the District Court of the Fourth Judicial District. Hon James A. Miner, Judge.

Mandamus on relation of Daniel Hamer, county collector, to compel Weber county and Joseph P. Ledwidge, county clerk of said county, to credit relator with $ 15,853.57. The court found that relator was entitled to a credit of only $ 8,804.63 and made the writ peremptory, from which decree relator appeals.

Reversed.

Messrs Richards & MacMillan and Messrs. Brown & Henderson, for appellant.

Mr. A J. Weber, county attorney (Mr. W. L. MaGinnis, of counsel), for respondents.

The Indiana, Kansas and Mississippi cases cited by appellant are based upon statutes wholly unlike that of Utah upon tax liens and tax sales, all of which go to a great length in protecting the purchasers of tax titles. The cases cited from Nebraska and Kentucky are also based upon statutes providing for the refunding of money paid at void or voidable tax sales and are not applicable in this case. In 65 out of 905 sales the collector knew that the delinquents had personal, taxable property, but made no effort to collect the taxes therefrom against the plain provisions of Session Laws 1892, p. 30, which provides that real estate may only be sold after the personal property has been exhausted by levy and sale. The provisions of the statute requiring the exhausting of personal taxable property as a condition precedent to the sale of real estate for taxes is mandatory. Black on Tax Titles, §§ 255-6-7; Blackwell on Tax Titles, §§ 342-3-4; 22 Mich. 104; 67 Mich. 415. All the proceedings of the several officers who have any act to perform with assessing the land, collecting the tax and selling the land, must be shown to have been done in strict compliance with the statute. Black on Tax Titles, §§ 155, 198; Blackwell on Tax Titles, §§ 472, 475; Cooley on Tax. pp. 470-71; 3 Washburne on Real Prop. 221, 230; Dillon on Mun. Corp. § 820; Clark v. Crane, 5 Mich. 151; 17 Mich. 437; 53 Mich. 30. Cooley on Tax. p. 531, says: "If the tax title proves defective the purchaser will have no lien on the land for the sum paid unless the statute in terms gives it." See, also, Cooley on Taxation, chap. 17, pp. 550, 553. "If a tax sale is absolutely void, the payment of the tax by the purchaser stands on the footing of a voluntary payment, not made at the request of the owner of the land." Harper v. Rowe, 53 Cal. 233; Axtel v. Gerlach, 67 Cal. 483; Treadwell v. Patterson, 51 Cal. 637; Cooley on Tax. p. 476. Black on Tax Titles, § 463, says: "At common law the purchaser at a tax sale comes strictly and rigidly within the rule of the caveat emptor. * * * And if his tax title proves to be worthless, he can not recover the amount he has paid in an action for damages against the officer, the owner, or the municipality." See, also, §§ 464, 465 and 381. Blackwell lays down the same rule, that caveat emptor applies to the tax title purchaser, unless he is given a remedy by statute. 2 Blackwell on Tax Titles, §§ 994-1008. In Utah we have no statute giving the tax sale purchaser a lien for taxes and costs upon land sold at a void sale. Cooley on Taxation, 509-10; Black on Tax Titles, § 301 and cases cited. These tax sale certificates and tax sales are defective and void for the further reason that the collector has charged excessive and illegal fees which are included in the certificates. Treadwell v. Patterson, supra; Axtell v. Gerlach, supra. "If a statute creates liability where otherwise none would exist, or increase a common law liability, it will be strictly construed. * * * The allowance of costs turns on the interpretation of the terms of the statute, and the intention deduced therefrom--they are strictly construed." Sutherland on Stat. Con. §§ 361-62-63, 371. "It is a well settled rule of law that every charge upon the subject must be imposed by clear and unambiguous language." Cooley on Taxation, p. 266 et seq. In construing this statute we have a right to ask whether 25 cents per folio for each original and a like sum for each duplicate certificate, would be fair and just to the citizen. Blackwell on Tax Titles, §§ 1182, 1192. "Statutes of costs are construed strictly." Blackwell on Tax Titles, § 1228 and cases cited. The tax certificate is "padded;" it includes 12 folios when two folios would be sufficient to cover the four facts required to be cited therein by the statute--the non-payment of the tax, the levy upon, advertisement and sale of real estate. 1 Comp. Laws 1888, § 2031. Van Duzee v. U.S. 59 F. 441. Eight-tenths of the recitals in the certificate are irrelevant and unnecessary, and those matters that should be stated are detailed repeatedly and with the apparent design of stretching the certificate to the greatest possible length. If the theory of defendant be tenable it makes no difference how illegal or exorbitant the collector's charges or fees may be; no difference whether the certificates are void or not. As the clerk is merely a ministerial officer, and the collector can present any kind of a certificate he pleases, it is wholly immaterial, according to the appellant's contention, what the certificates are, what they contain, or whether the collector has disregarded part of the law or all of it, the county clerk must credit him with all the collector sees fit to claim, and the collector may, at the same time, convert to his own use sufficient money to pay all costs represented on the face of the certificates, in addition to keeping out territorial and school district taxes, and even paying to himself, out of county funds, taxes due the county. The collector is to audit his own claims, say what his costs should be, pay himself out of county funds in his hands, and the county court must be a mere looker on. The county court has the power, and it is its duty "to supervise the official conduct of all county officers," etc. § 187, p. 298, Vol. 1, Comp. Laws Utah; § 196, p. 307, Vol. 1, C. L.; Sub. 12, § 187, Vol. 1, C. L.; § 208, p. 310, Vol. 1, C. L. Section 2031 does not make the tax collector an absolute autocrat, whose mandates must be meekly obeyed by both the county and its clerk. It does not give effect to the evident intention of the law to say that the tax collector is the sole judge of what is due him, that the county clerk must credit him with whatever tax sale certificates, however void they may be, regardless of the charges made which the collector may present. Section 2036 of the Comp. Laws says: "And the collector is required to pay to the county treasurer, once a month, or oftener if required by the county court, all county funds collected by him." The county court of Weber county required the collector to pay all county funds into the county treasury on Monday of each week. Under the statute and the order of the county court, it was the plain duty of the tax collector to pay all county funds into the county treasury on Monday of each week. The order of the county court was mandatory, and the collector can not be heard as to any excuse he may give for evading or avoiding that order. "It is not the right of the collector in a suit against him for taxes collected, to set off a demand owing to himself by the municipality for which he acts even though it be for unpaid salary." Cooley on Tax. p. 706; Mechem on Pub. Off. § 873; City of San F. v. Ford, 52 Cal. 198. "There is no implied obligation on the part of the municipal or quasi municipal corporations which obliges them to make compensation to officers of the municipality, unless the right to it is expressly given by law, ordinance or contract. Such officers are deemed to have accepted their offices with knowledge of the provisions of the charter law." Rowe v. Kern, 72 Cal. 353; Dillon on Mun. Corp. § 229 et seq. Mechem on Pub. Off. § 862; Adams v. Hunter, 63 Ia. 413; Dillon on Mun. Corp. § 234. The county court fixed the collector's salary at $ 3,000 per year. This covered everything except his actual expenditures in advertising and making sales.

SMITH, J. MERRITT, C. J., concurs. BARTCH, J., dissenting.

OPINION

SMITH, J.:

This was a proceeding in mandamus, commenced by the plaintiff in the court below against the defendants, Weber county and Joseph P. Ledwidge, who was at the time of the filing of the complaint, and still is, the duly elected qualified, and acting county clerk of Weber county, Utah. The plaintiff was, at all times mentioned, tax collector of Weber county. The petition alleges, in substance, that on the 18th, 19th, and 20th days of December the plaintiff, in accordance with the law, offered for sale at public auction, for delinquent taxes, sundry pieces and parcels of real estate; and that at such sale no person bid for the same or any part thereof; and that the plaintiff struck off the property offered for sale to the probate judge of Weber county, and issued certificates of sale in due form; and afterwards, on the 26th day of December, 1893, plaintiff tendered to defendant Joseph P. Ledwidge, as clerk of said county, such certificates of sale, numbering in the aggregate 905, each representing a different piece or parcel of real estate, and then and there demanded of the clerk of said county credit upon his account for the amount of taxes and costs due thereon, and represented by such certificates of sale to the amount of $ 15,853.57. That the defendant, as such clerk, then and there accepted the certificates of sale, but then and there refused, and still refuses, to credit the plaintiff with the amount of taxes due thereon and the costs to the date of sale, or any part thereof. The prayer is that the defendant Ledwidge be required to credit the...