Hertzler v. Cass County

• Decision Date: 01 July 1903
• Docket Number: 6731
• Citation: 96 N.W. 294,12 N.D. 187
• Court: North Dakota Supreme Court

96 N.W. 294

12 N.D. 187

JOHN HERTZLER v. L. R. FREEMAN, ET AL., AND CASS COUNTY

No. 6731

Supreme Court of North Dakota

July 1, 1903

Appeal from District Court, Cass county; Charles A. Pollock, J.

Action by John Hertzler against the county of Cass and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Newman Spalding & Stambaugh, for appellant.

The statutory requirement, that taxes on land be assessed in the name of the owner, if known, and if unknown to so state, is for the benefit of the taxpayer, and is mandatory, and failure to so assess is fatal to the tax. Roberts v First National Bank of Fargo, 8 N.D. 504, 79 N.W. 1049; Sweigle v. Gates, 9 N.D. 538, 84 N.W. 481; Eaton v. Bennett, 10 N.D. 346, 87 N.W. 188; Himmelman v Stiener, 38 Cal. 175; People v. Whipple, 47 Cal. 591; Smith v. Davis, 30 Cal. 537; Smith v Cofran, 34 Cal. 310; Hughes v. Reese, 40 Cal. 255; Beidleman v. Brooks, 28 Cal. 72; Kelsey v. Abbott, 13 Cal. 609; Grotenfend v. Ultz, 53 Cal. 666; Gwynn v. Dierssen, 36 P. 103; Klumpke v. Baker, 68 Cal. 559, 10 P. 197.

Emerson H. Smith and Edward Engerud, for respondents.

The name of the owner of the land taxed is not essential to its valid assessment under the state revenue laws. Sweigle v. Gates, 9 N.D. 538, 84 N.W. 481, is not applicable, as it was rendered under the territorial law, which provided a system unlike that under Chap. 126, Laws of 1897. Under the state system, the proceeding is in rem; while under the territorial law it was in personam. The distinction between the two systems is pointed out in Burroughs on Taxation, chapter 2, section 95. See also Cooley on Taxation, p. 275. The personal liability theory prevails in California. Kelsey v. Abbott, 13 Cal. 609; Taylor v. Palmer, 31 Cal. 240. In Massachusetts, Sargent v. Bean, 7 Gray 125; Peas v. Whitney, 5 Mass. 380; Green v. Croft, 6 Cush. 70; Alvord v. Collin; 20 Pick. 418; In New York Newell v. Wheeler, 48 N.Y. 486; Whitney v. Thomas, 23 N.Y. 284; Cottle v. Cary, 70 N.Y.S. 129. In Oregon, Tracy v. Reed, 38 F. 69.

The Supreme Court of Nebraska points out the difference between tax in personam and in rem. Lyman v. Anderson, 2 N.W. 732; Grant v. Bartholomy, 78 N.W. 314.

OPINION

YOUNG, C. J.

This is an action to quiet title to 160 acres of land situated in Cass county. The plaintiff alleges that he has a lien thereon, consisting of a mortgage, upon which a judgment of foreclosure has been entered; that the defendants claim certain estates or interests in or liens or incumbrances upon the same adverse to the plaintiff; and prays that they may be required to set forth their claims, to the end that their validity and priority may be determined, and that title may be quieted in the plaintiff. L. R. Freeman, R. E. Fleming, the Richards Trust Company, and Cass county were made defendants. The three defendants first named made default. Cass county served notice of appearance, but did not answer within the statutory period. Judgment was entered by default quieting title in the plaintiff as against the three defendants first named, and also declaring that the defendant Cass county had no interest in or lien upon the premises for taxes assessed and levied for the years 1900 and 1901. Thereafter the state's attorney of Cass county, upon his affidavit, procured an order to the plaintiff to show cause why the judgment should not be vacated. The application to vacate the judgment was granted. The plaintiff then obtained leave to serve and file a supplemental complaint, alleging that since the commencement of the action the county of Cass claims to have acquired a new and additional lien upon the premises adverse to the plaintiff, and asked that it be required to set the same forth, that its validity and superiority might be determined. Cass county answered, alleging that the premises in question were duly and regularly assessed for taxation in the years 1900 and 1901, and taxes levied thereon for said years; that the same are still of record against said land, and are unpaid, and constitute liens upon the land, and asks that the taxes for both of said years be adjudged and decreed to constitute liens upon said premises. The trial court made and filed findings of fact, and as conclusions of law found that the premises were duly and lawfully assessed in the years 1900 and 1901, and that the taxes for said years constitute valid liens thereon, and that the defendant is entitled to a judgment dismissing the plaintiff's complaint as to the defendant Cass county. From the judgment so entered the plaintiff appeals.

Appellant claims that the taxes for the years 1900 and 1901 are void for want of a valid assessment. It is conceded that in both years the land was assessed to L. R. Freeman, and that he was not the owner of the land. Does this fact render the assessment void? We are agreed that it does not. The assessments were made under chapter 126, p. 256, Laws 1897. A real estate tax imposed under this act does not become a personal obligation against the owner, but is merely a charge against the land itself. In other words, the entire tax proceedings as to real estate are in rem, and not in personam. There is no provision in our state constitution which requires that real estate shall be assessed in the name of the owner. It was entirely competent then, for the legislature to provide that real estate should be assessed without any reference whatever to the name of the owner; that is to say, by any such description or method as would have been legally adequate to convey either actual or constructive notice to the owner (Castillo v. McConnico, 168 U.S. 674, 18 S.Ct. 229, 42 L.Ed. 622), and to declare that land "shall be chargeable with taxes, no matter who is the owner, or in whose name it is assessed and advertised, and an erroneous assessment does not vitiate a sale for taxes." (Witherspoon v. Duncan, 71 U.S. 210, 4 Wall. 210 at 217, 18 L.Ed. 339). Section 179 of the state constitution provides that "all property * * * shall be assessed * * * in the manner prescribed by law." This section gives the taxpayer a constitutional right to have the mandatory provisions of the law regulating assessments complied with. Are the provisions of the act of 1897, in so far as they require an assessment of real estate to be made in the name of the owner, mandatory? Counsel for appellant contend that they are, and that there can be no valid assessment of real estate unless made in the name of the owner. We are of a contrary opinion. It will be noted at the outset that the act of 1897 does not, in express language, command assessors to list real estate in the name of the owner, as did section 1548, Comp. Laws, which was construed in Sweigle v. Gates, 9 N.D. 538, 84 N.W. 481. While it is true that the assessor is not specifically directed to list real estate in the name of the owner, there are certain other provisions contained in the act which make it clear that it was intended that he should do so. For instance, section 31 requires the county auditor to prepare and deliver to the assessor assessment books "showing the name of owners if to him known, and if unknown so to state." Section 106 provides for a notice of expiration of redemption "to the person in whose name such lands are assessed." Both of these sections assume that the assessment of real estate is to be in the name of the owner. It is quite clear, however, that the use of the owner's name under this act is essentially for the guidance of the taxing officers, and for the purpose of securing system in the tax proceedings; and that it is not essential to a valid assessment. The requirement is, therefore, not mandatory. The rule is that regulations designed to secure order, system and dispatch in tax proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected, are not usually regarded as mandatory, unless accompanied by negative words importing that the act required shall not be done in any other manner or time than as designated. French v. Edwards, 80 U.S. 506, 13 Wall. 506, 511, 20 L.Ed. 702; Cooley on Taxation (2d Ed.) 233. This act contains no words importing that the assessment shall not be made in any other manner than to the owner. The reverse is true. Section 78 enumerates the only grounds which, according to the legislative intent, will defeat a tax sale. The failure to assess in the name of the owner is not one of the grounds. The fact that the legislature did not intend that the failure to assess real estate in the name of the owner should be fatal to the tax is also shown by section 1241, Rev. Codes, which authorizes a change and correction of the name after the assessment roll has been completed. There is a further provision, however, which places the immateriality of an error in assessing real estate to another than the owner beyond question. Section 81 of this act, in referring to tax sales, expressly provides that "no such sale of real estate for taxes shall be considered invalid on account of the same having been charged in any other name than that of the rightful owner." This provision has been in force in Minnesota since 1874, and, while it refers to the avoidance of the tax sale, it applies generally to the charge of the tax. Jaggard on Taxation, 364. Statutes substantially similar are now in force in many states, and they are uniformly construed as rendering an error in naming the owner of no consequence. Lake County v. Sulphur Bank Quicksilver Min. Co., 66 Cal. 17, 4 P. 876; Landregan v. Peppin, 86 Cal. 122, 24 P. 859; Haight v. The Mayor, 99 N.Y. 280, 1 N.E. 883; Haight v. The Mayor, 32 Hun 153; Petrie Lumber Company v. Collins, 66 Mich. 64, 32 N.W. 923; Hill v. Graham, 72 Mich. 659, 40 N.W. 779; Bradley v. Bouchard, ...