Hanson v. Burris

• Decision Date: 23 May 1935
• Docket Number: 5486
• Court: Utah Supreme Court
• Parties: HANSON v. BURRIS et al

46 P.2d 400

86 Utah 424

HANSON v. BURRIS et al

No. 5486

Supreme Court of Utah

May 23, 1935

Rehearing Denied July 6, 1935.

Appeal from District Court, Fifth District, Millard County; Le Roy H. Cox, Judge.

Action by Henry Hanson against Oak Burris and others. Judgment for plaintiff, and defendants appeal.

AFFIRMED.

Soule &amp Spalding and S. R. Thurman, all of Salt Lake City, for appellants.

Charles D. Moore, of Salt Lake City, for respondent.

MOFFAT Justice, EPHRAIM HANSON, Justice, WOLFE, Justice, FOLLAND, Justice, concurring. ELIAS HANSEN, Chief Justice, concurring in the results.

OPINION

MOFFAT, Justice.

The complaint herein pleads two causes of action: (1) The short form to quiet title; and (2) title to the property by virtue of purchase from Millard county after said county had acquired title thereto by purchase or foreclosure of tax lien for nonpayment of taxes, setting forth in detail the procedure from the tax levy through to sale and issuance of auditor's deed to the county and subsequent purchase by plaintiff from the county. The land described consists of 80 acres within the boundaries of the Millard county drainage district No. 3 in Millard county, Utah. The steps in the tax proceedings of assessment, levy, notice of due date, delinquency notice, sale, issuance of certificate of sale, failure to redeem, execution of auditor's tax deed, publication of notice of the May sale (so-called) and the sale and transfer of the described property by the county to plaintiff were alleged. The amount paid for the property including taxes for subsequent years from delinquency with interest and penalties is set forth. The plaintiff prayed that title to the property be quieted in him and for other relief.

Plaintiff joined in the action as defendants all parties who appeared of record to have any interest in the issues including the original owner, the mortgage holder, easement holders, judgment creditors, Millard county drainage district No. 3, and certain bondholders. All defendants defaulted except appellants Millard Realty Corporation, George S. Ingraham, Sherwood Green, and Edward P. McKenna. Ingraham, Green, and McKenna compose the bondholders' committee of drainage district No. 3. They and the Millard County Realty Corporation, a bondholders' operating company, set up similar defenses. The drainage district did not appeal.

Four cases bearing more or less directly upon the same issues were argued together, and though the drainage district had not appealed, legal counsel appeared upon consent of all parties, filed a brief, and stated the position of the drainage district.

The amended answer of the appellants, after admitting some of the allegations of the complaint and denying others, sets out the organization of the defendant drainage district and the issuance and sale by the district on August 1, 1918, of drainage district bonds in the sum of $ 1,250,000. The form of the bond, the numbers, denominations, amounts, and dates of maturity are set out. All bonds issued are identical in wording and differ only in number, denomination, and date of maturity. Defendants alleged the drainage district was duly organized before the bonds were sold; that the drainage district estimated and equalized the assessment of drainage benefits under the Drainage Act of Utah, and set out in haec verba or in substance Comp. Laws Utah, 1917, § 2055, relating to such proceedings; section 2057, relating to computing the drainage tax and placing the same upon the assessment roll; section 2058 relating to when drainage taxes become a lien, when delinquent, and the time and manner of collection; section 2071, relating to issuance of drainage district bonds; and section 2072, making the bonds a lien upon all lands within the drainage district; also the substance of sections 5910, 5912, 6010, 6016, 6018, 6020, and 6021, Comp. Laws Utah 1917. These latter sections provided how the county tax roll is made up by the county assessor, the delivery of the tax roll by the assessor to the county treasurer, the treasurer's duties in relation thereto, notices to taxpayers, publication of delinquent tax lists, notices of sale, time and manner of sales for delinquency, duties of the auditor and treasurer in relation to tax sales, issuance of tax sale certificates, form thereof, and sales to the county with the recordation thereof. Sections 2055, 2057, 2058, 2071, and 2072, supra, are found in the chapter of the Compiled Laws relating to drainage districts; the other sections are found in the chapters relating to assessment and collection of taxes generally.

Appellants contend the amendment of section 2058, Comp. Laws Utah 1917, by chapter 47, Session Laws 1921, and chapter 109, Session Laws 1925, are unconstitutional and "the crux of this suit." Appellants reduce the controversy to one, as they assert, revolving "around the impairment of the obligation of contract under the Federal Constitution."

"Briefly it is the contention of appellants that there is under the taxing laws of Utah, as in the sections above indicated, but one annual tax roll or tax book in each County in which must be placed all of the taxes, both general and special, one notice of sale, one certificate of sale, and one tax deed, in all of which instruments the general and special taxes must be included and both general and special taxes, when delinquent, must be sold at the same instant of time and when paid all taxes or none shall be paid and the treasurer shall issue but one receipt, which shall include receipt of payment for all of both general and special taxes. By special tax here we intend and include drainage taxes.

" * * * Under the above provisions of the Utah statutes which were in force and effect when these drainage bonds were sold August 1st, 1918, each description of land with the ownership must be set out separately. Opposite this description must be itemized all state, county, school, road district, drainage district, and other special taxes, if any, and computed in one total sum of taxes due and that this total of taxes must be published in one notice and carried on through in the sale, certificate of sale and tax deed and that the sale for delinquent taxes must be for one lump sum, including all of these taxes.

"Much contention will be made in this cause over the construction of the words contained at the end of section 2055, Comp. Laws Utah 1917, which reads as follows: 'and it shall be the duty of the County Treasurer to collect such taxes at the time and in the same manner that the said county taxes are collected and pay the same to the treasurer of the Board of Supervisors as soon as moneys are received by him,' and the words in the last sentence of section 2058 which read as follows: 'Drainage taxes shall become due and delinquent at the same time shall be collected by the same officers and in the same manner as state and county taxes, and when collected shall be paid to the treasurer of the Board of Supervisors. (Italics appellants'.) It it the contention of appellants that the words 'at the time' and 'at the same time and in the same manner' can mean but one thing.

"These answering defendants further alleged that by and through the said amendments, of said section 2058, Compiled Laws of Utah, 1917, as hereinbefore alleged, and by the through the taxing proceedings carried on by the said county officials from the year 1921 to 1929, inclusive, hereinbefore alleged, the State of Utah and said taxing officials have unlawfully impaired the obligation of contract between the defendant drainage district, these answering defendants and the State of Utah, as so provided by the statutes of the State of Utah, for the payment of drainage bonds, as aforesaid, in violation of section 10, article 1, of the Constitution of the United States and of section 1 of the Fourteenth Amendment to the Constitution of the United States; and in violation of section 7, 18, and 22 of article 1 of the Constitution of the State of Utah, and by reason thereof the said amendments to said Section 2058, in so far as the rights of these answering defendants and other holders of said drainage bonds, as herein set out, are unconstitutional and void and of no force and effect and a denial of the due process of law provisions of said Constitution.

"That in the year 1926, the lands described in plaintiff's complaint in Millard County, Utah, to-wit: West half of the Northwest quarter of Section 21, Township 16 South, Range 7 West, S. L. M. were subject to taxation for State, county school and drainage taxes and the lien of said bonds as herein alleged and were in the manner hereinbefore alleged assessed for state, county and school taxes in one book and for drainage taxes in another and different book and, if any notices were served notifying landowners of said taxes, one separate notice was served upon the purported landowner of the land last described for the state, county, and school taxes and another separate notice was served, if any, on said purported landowners for the delinquent drainage taxes for that year on said last above described tract of land. Said state, county and school taxes went delinquent on said tract of land and the treasurer of Millard County caused a notice of sale of said lands for delinquent state and county and school taxes to be published, if any notice were published, fixing the time and the day for the sale of said lands for delinquent state, county and school taxes for the year 1926. Said drainage taxes went delinquent on said described tract of land for the year 1926 and the said County Treasurer caused a separate and different notice of the sale of said land for said delinquent drainage taxes to be published, if any notice at all were published,...