Kincannon v. Irwin, County Treasurer

• Decision Date: 10 June 1946
• Docket Number: 4807
• Citation: 169 P.2d 861,64 Ariz. 307
• Parties: KINCANNON v. IRWIN, County Treasurer, etc
• Court: Arizona Supreme Court

169 P.2d 861

64 Ariz. 307

KINCANNON v. IRWIN, County Treasurer, etc

No. 4807

Supreme Court of Arizona

June 10, 1946

Appeal from Superior Court, Coconino County; Levi S. Udall, Judge.

Reversed with directions.

Wilson Compton & Wilson, of Flagstaff, for appellant.

McQuatters & Stevenson and F. M. Gold, all of Flagstaff, for appellees.

LaPrade Judge. Stanford, C. J., and Morgan, J., concur.

OPINION

LaPrade, Judge.

The appellant, plaintiff below, brought action to set aside a Treasurer's Deed executed and delivered to the appellee K. M. Quinn, which had its origin in a tax sale conducted by the County Treasurer for the non-payment of taxes. Article 8 of Chapter 73, A.C.A.1939, sets forth the procedure to be followed for the collection of delinquent taxes. Section 73-804, A.C.A.1939 of said Article 8, relates to the form of the notice of sale to be published by the County Treasurer. Among other things, it is provided that the County Treasurer shall publish a list of the properties on which there are delinquent taxes * * * to be published in two consecutive weekly issues of the official paper, the first of which publications shall not be less than two weeks nor more than three weeks prior to the date designated upon which the sale shall commence.

Section 73-806, Id., fixes the date on which any tax sale shall commence, and specifically relates to the date that shall be contained in the tax notice required to be published by Section 73-804, supra. The applicable portion of Sec. 73-806 reads as follows:

"The day designated in said list and notice shall not be earlier than the first day of October, nor later than the first day of November, and on said day the county treasurer shall commence the sale of all real property described in such list and notice on which the taxes and charges have not been paid, and shall continue the sale from day to day, Sundays and holidays excluded, until each parcel, or so much thereof as is necessary to pay the taxes and charges thereon, has been sold. * * *"

The County Treasurer, defendant Irwin's predecessor in office, caused his notice of tax sale to state that the sale would commence on the 30th day of September, 1938, contrary to the specific provision of Sec. 73-806, supra, which states that "the day designated in said list and notice shall not be earlier than the first day of October."

The tax notice was published twice, on September 9th and 16th, 1938. The sale was commenced on the 30th day of September and continued from day to day. On the 11th day of October, plaintiff's property was struck off to the state. Thereafter the certificate of purchase was assigned to the appellee, Quinn. After the expiration of five years from the sale, the assignee made application for a treasurer's deed and received the same. See Sec. 73-835, Id. Belatedly, the appellee made attempt to redeem. His tender of taxes due was refused. He then brought this suit. There were several irregularities other than the one referred to, and upon which have been predicated assignments of error. Of these additional assignments of error, we will not take any cognizance, for the reason that our disposition of appellant's first assignment is conclusive of the vital issue in this case. This assignment is to the effect that the court erred in entering judgment declining to vacate the Treasurer's sale and permit plaintiff to redeem, for the reason that the sale was absolutely void in that the published list and notice of sale designated a day of sale not provided by law, and in contravention of Sec. 73-806, supra.

We are of the opinion that the original sale is void because the published notice of sale specified a day for the commencement of sale not provided by law. The day specified in the notice was September 30th, one day earlier than that authorized by law. It is the contention of the appellant that giving and publishing the notice required by law is jurisdictional and that the statute is mandatory.

This contention finds support in the decision of this court in Consolidated Motors Inc., v. Skousen, 56 Ariz. 481, 109 P.2d 41, 44, 132 A.L.R. 1040. In this case the court had before it an interpretation of Sec. 18 of Chapter 103, Laws of 1931, which section is now practically identical with our Sec. 73-804. In the Skousen case we said:

"It is apparent, upon an examination of chapter 103, supra, that the notice contemplated by the legislature as giving jurisdiction to proceed with the tax sale, is the published notice provided for by section 18, supra, * * *."

Appellees counter by suggesting that the tax statutes relating to sales of real estate for delinquent taxes are governed and should be governed by the principles of liberal statutory construction in order:

"(a) To preserve the sanctity of tax titles by elimination of uncertainty of ownership of property caused by technical defects;

"(b) To promote the collection of revenue through sale of property on which taxes are delinquent; and

"(c) To protect the rights of a purchaser who, in acquiring property at tax sale, must rely and is entitled to rely on the official proceedings of the duly authorized agents of government in conducting the sale."

The trial court found that the irregularities complained of were ministerial, not serious, and that the plaintiff property owner was not misled to his prejudice or injury. It is said that the law contemplates that the sale should take place in October, and that since the sale of plaintiff's property was had on the 11th of October, that he was not prejudiced thereby and that all real property taxpayers are presumed to know that taxes levied must be paid and that sales occur in the month of October each year to effect the collection of unpaid delinquent taxes.

The real question to be determined is whether or not the statute relating to notice is mandatory, rather than whether it should be liberally or strictly construed. There is no opportunity to liberally construe jurisdictional mandates. Taxing officials derive their authority to assess, levy, collect tax monies, and in the event of non-payment of taxes, deprive the owner of his property by tax sales, from the laws enacted for the orderly conduct of the state's fiscal affairs and the laws enacted for the protection of the state's property owners. The approach to these statutes is lucidly and forcibly set forth in 51 Am.Jur., Taxation, Sec. 305, which in part reads as follows:

"One of the commonest problems in connection with the construction of tax statutes is whether or not the provisions thereof are mandatory, defining that term to mean one the omission to follow which renders invalid the act or proceeding to which it relates, or directory, meaning one the omission to follow which does not involve such consequences. Speaking broadly, it may be said that provisions in tax laws intended to promote dispatch, method, system and uniformity in modes of proceeding, or designed merely for the information of administrative officers, are usually deemed to be directory; but those intended for the protection of the taxpayer and to prevent a sacrifice of his property are mandatory, and they must be followed, or the acts done under them will be invalid. * * *"

In applying the above rule, this court has held that the statute requiring notice by publication is regarded as mandatory (Conway v. Mosher, 55 Ariz. 307, 101 P.2d 209); that the provision of Sec. 73-806, supra, prohibiting the striking off of property to the state on the first day of the sale, is mandatory. State v. Miami Trust Co., 61 Ariz. 499 152 P.2d 131, 132. The holding in this last named case is contrary to the contention of appellee in that it refutes the contention of appellee and the trial court that actual prejudice must result to the taxpayer from the omission, otherwise the sale will be upheld. This court in that case did not consider whether the Miami Trust Company was actually prejudiced but held the sale void because the act of the treasurer in striking off the property to the State on the first day of sale rather than at a subsequent time "was a plain violation of the terms of ...