Haumesser v. Chehalis County

• Decision Date: 05 December 1913
• Citation: 76 Wash. 570,136 P. 1141
• Court: Washington Supreme Court
• Parties: HAUMESSER v. CHEHALIS COUNTY.

136 P. 1141

76 Wash. 570

HAUMESSER v. CHEHALIS COUNTY.

Supreme Court of Washington

December 5, 1913

Department 2. Appeal from Superior Court, Chehalis County; Mason Irwin Judge.

Action for injunction by Joseph Haumesser against Chehalis County. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions to dismiss the proceeding.

J. E Stewart and A. Emerson Cross, both of Aberdeen, and O. M Nelson, of Montesano, for appellant.

W. H Abel, of Montesano, for respondent.

MOUNT J.

This action was brought by the plaintiff to restrain Chehalis county from collecting taxes for the years 1911 and 1912 upon certain lands owned by him, upon the ground that the taxes levied for those years were void. The cause was tried upon an agreed statement of facts. The court concluded as a matter of law that the taxes for 1911 and 1912 levied upon the plaintiff's lands were void. A judgment was accordingly entered. The defendant, Chehalis county, has appealed.

The stipulated facts are as follows: On June 24, 1905, Joseph Haumesser made homestead application for the lands in question. Thereafter, on October 27, 1909, Mr. Haumesser made final proof and received a final certificate. The lands were assessed for the year 1910, and the taxes for that year were paid by Mr. Haumesser to Chehalis county. On October 1, 1910, the United States government, by its duly authorized officers, filed an adverse proceeding against the entry and final proof of Mr. Haumesser, alleging that he had never established and maintained a residence on the lands and that he had never cultivated them. In March, 1913, after investigation and additional proofs, the adverse proceeding was dismissed and the lands were clear-listed for patent. Thereafter on April 15, 1913, a United States patent was issued to Mr. Haumesser conveying the lands to him.

The controlling question in the case is: Did the filing of the adverse proceeding against the entry and final proof exempt the land from taxation pending the hearing? It is argued by the respondent that the issuance of final certificate was only prima facie evidence of compliance with the homestead law; that this certificate was subject to attack and additional proofs by the land department of the United States.

There can be no question that the land department of the government had a clear right to contest the regularity of the proofs or the sufficiency thereof after final certificate had been issued.

In Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 18 S.Ct. 208, 42 L.Ed. 591, the Supreme Court of the United States upon this question said: 'It is, of course, not pretended that when an equitable title has passed the land department has power to arbitrarily destroy that equitable title. It has jurisdiction, however, after proper notice to the party claiming such equitable title, and upon a hearing, to determine the question whether or not such title had passed. Cornelius v. Kessel, 128 U.S. 456 [9 S.Ct. 122, 32 L.Ed. 482]; Orchard v. Alexander, 157 U.S. 372, 383 [15 S.Ct. 635, 39 L.Ed. 737]; Parsons v. Venzke, 164 U.S. 89 [17 S.Ct. 27, 41 L.Ed. 360]. In other words, the power of the department to inquire into the extent and validity of the rights claimed against the government does not cease until the legal title has passed. 'A warrant and survey authorize the proprietor of them to demand the legal title, but do not, in themselves, constitute a legal title. Until the consummation of the title by a grant, the person who acquires an equity holds a right subject to examination.' Miller v. Kerr, 7 Wheat. 1, 6 . After the issue of the patent the matter becomes subject to inquiry only in the courts and by judicial proceedings. * * * This jurisdiction of the department has been maintained in cases of pre emption where the entire purchase money has been paid and a receiver's final certificate issued.'

And in Orchard v. Alexander, 157 U.S. 372, at page 383, 15 S.Ct. 635, at page 639 (39 L.Ed. 737), that court said: 'Of course, this power of reviewing and setting aside the action of the local land officers is, as was decided in Cornelius v. Kessel, 128 U.S. 456 [9 S.Ct. 122, 32 L.Ed. 482], not arbitrary and unlimited. It does not prevent judicial inquiry. Johnson v. Towsley, 13 Wall. 72 . The party who makes proofs, which are accepted by the local land officers, and pays his money for the land, has acquired an interest of which he cannot be arbitrarily dispossessed. His interest is subject to state taxation. Carroll v. Safford, 3 How. 441 ; Witherspoon v. Duncan, 4 Wall. 210 . The government holds the legal title in trust for him, and he may not be dispossessed of his equitable rights without due process of law. Due process in such case implies notice and a hearing. But this does not require that the hearing must be in the courts, or forbid an inquiry and determination in the land department.'

There can be no doubt, therefore, that the land department was authorized to investigate the proofs upon which the final certificate was issued and to call for additional proofs. This, we think, did not change the status of the final certificate. It simply delayed the issuance of the patent, and in case of an adverse ruling by the land department the certificate might have been canceled. But in this case the final certificate was not canceled, and Mr. Haumesser remained in possession of his land.

No case has been cited to us which holds that an adverse proceeding such as this relieves the land from taxation. The statutes of this state (Rem. & Bal. Code, § 9140) provide: 'The assessor must assess all improvements on public lands as personal property until the settler thereon has made final proof. After final proof has been made, and a certificate issued therefor, the land itself must be assessed, notwithstanding the patent has not been issued.'

It is clear, therefore, that under the statute this land was subject to taxation unless the filing of the adverse proceeding after the issuance of the final certificate suspended the right of the state to levy taxes upon the land. This question was before the Supreme Court of Minnesota in the case of County of Polk v. Hunter, 42 Minn. 312 44 N.W. 201. That was a case substantially like this. The court there said: 'Lands sold by the United States may be taxed before it has parted with the legal title by issuing a patent, and this doctrine is applicable to cases where the right to the patent is complete, and the equitable...