Magee v. Whitacre

• Decision Date: 23 October 1940
• Docket Number: 3291.
• Citation: 106 P.2d 751,60 Nev. 202
• Parties: MAGEE et al. v. WHITACRE, County Treasurer (WALKER RIVER IRR. DIST., Intervener).
• Court: Nevada Supreme Court

106 P.2d 751

60 Nev. 202

MAGEE et al. v. WHITACRE, County Treasurer (WALKER RIVER IRR. DIST., Intervener).

No. 3291.

Supreme Court of Nevada

October 23, 1940

Appeal from District Court, First District, Lyon County; W. D Hatton, Presiding Judge.

Action by Harry H. Magee and others against Walter Whitacre, as treasurer and ex officio tax receiver of Lyon county, Nev for an injunction forbidding the defendant from selling, on demand of the Walker River Irrigation District, certain parcels of land situated therein, for delinquencies arising from assessments and charges of the district, wherein the Walker River Irrigation District intervened. From an adverse judgment, the plaintiffs appeal.

Affirmed.

George L. Sanford, of Carson City, for appellants.

Richard R. Hanna, of Yerington, and W. M. Kearney, of Reno, for respondents.

W. M Kearney and Robert Taylor Adams, both of Reno, for intervening respondent.

Roy W. Stoddard and Charles M. Merrill, both of Reno, and A. L. Haight, of Fallon, amici curiae.

ORR Justice.

Appellants instituted an action in the First Judicial District Court, in and for Lyon County, asking an injunction forbidding defendant Lothrop, who was at the time county treasurer and ex officio tax receiver of Lyon County, from selling, on demand of the Walker River Irrigation District, certain parcels of land situate therein, for delinquencies arising from assessments and charges of the district, alleging that the threatened sales of said lands were without authority of law. Defendant set up in his answer that the lands were bid in at tax sales by the county, that the county later obtained deeds to said lands, and later resold them to appellants, but that said lands remained charged with the lien of the unpaid irrigation district assessments, and that a summary sale was authorized under Section 29 1/2 of the Nevada Irrigation District Law, as amended, in order to foreclose said lien. Walker River Irrigation District intervened and alleged that the bonds issued by the district were general obligations of the district and were a lien on all of the lands in said district; that the lands were lawfully assessed, became delinquent, and were subject to summary sale.

Appellants assert that Section 29 1/2 of the Irrigation District Law, as amended, violates the following sections of the Constitution of the State of Nevada: (1) Article IV, Sections 17, 20 (subdivisions 11 and 16) and 21; (2) Article IX, Sections 2 and 3; (3) Article X, Section 1; and violates Section 10 of Article 1 of the Constitution of the United States. The principal objection urged against the constitutionality of said Section 29 1/2 is that the said section attempts to make the lien of an irrigation district for assessment charges equal or superior to the lien for general state, county, city and school taxes.

The trial court found that certain of the attempted levies, as alleged in the complaint, were not lawfully made, but did find that the district assessments against the so-called Magee Parcel No. 3 of Harry H. Magee, and the lands of L. S. Greely, Floyd Becker and Harriet K. Arentz, were lawfully made.

The appeal herein must be considered as from the judgment roll alone, and only those alleged errors which appear from the face thereof will be considered. However, the main questions raised and to be determined on this appeal sufficiently appear, namely, the constitutionality of said Section 29 1/2, as above set forth, and, further, whether or not it was legally enacted.

The following assignments of error are presented for consideration: (1) that the court erred in dismissing the injunction forbidding the sale of the lands of Harry H. Magee Parcel No. 3 and the lands of plaintiffs Greely, Becker and Arentz; (2) the court erred in adjudging and concluding as a matter of law that Section 29 1/2 of the Nevada Irrigation District Act, as said section was amended by Statutes of Nevada 1927, p. 309, at p. 320, and as said act existed at the time of trial, being Section 8042, N.C.L. 1929, as amended, was and is constitutional; (3) the court erred in adjudging and concluding that the irrigation district assessments, tolls and charges were and are on an equality with the lien for the general taxes.

Appellants assume to attack the Nevada Irrigation District Law, as amended, in all its phases, yet they are entitled to a decision on those phases alone which are properly raised by the facts presented in this case. We are not authorized to enter into a determination of the constitutionality of the statute on a supposed or hypothetical case which might arise thereunder. 16 C.J.S., Constitutional Law, p. 162, § 76; 11 Am.Jur., p. 753, note 18.

As has been noted the lands in question became delinquent and were sold to the county; no redemption was made, and the title passed to the county; thereafter the county sold said lands to appellants; the delinquent irrigation district assessments were not taken care of and remain unpaid. Appellants contend that they are entitled to take under the deeds from the county, free and clear of all encumbrances, pursuant to the provisions of Sections 41 and 55 of the General Revenue Law. Comp.Laws, §§ 6449, 6462.

The Nevada Irrigation District Law has been before this court on a number of different occasions, the constitutionality thereof being presented for consideration in several different aspects, but the decisions of this court have uniformly upheld the constitutionality of the act as to the questions presented. One of the first determinations made by this court was in the case of In re Walker River Irrigation District, 44 Nev. 321, 195 P. 327. The sufficiency of the title of the act was questioned at that time, and also the constitutionality of the provisions relative to voting privileges. In deciding the constitutionality of the provisions of the Nevada act relative to voting privileges, this court refused to follow the decisions of California and Idaho, and patterned its finding after the cases of Oregon. Appellants profess to see in that decision a disposition on the part of this court to reject the California and Idaho decisions as authority on points other than those under consideration by the court at the time of its making the decision above referred to. However, we cannot accept this interpretation, and if questions not decided in the Walker River Irrigation District case, supra, are presented, and we find cases in California or Idaho or any other state which are persuasive, we feel that we should not hesitate to give them due consideration. It is conceded that the Irrigation District Law of Nevada, as well as most of the western states, is patterned after the Wright Act of California, and the decisions of the State of California interpreting that act, which had been decided at the time of the enactment of the Nevada Irrigation District Law, will be given great weight in the determination of cases involving the latter.

Appellants adopt two statements in the case of In re Walker River Irrigation District, namely: that an assessment is not a tax and that an irrigation district is not a municipality, and place much emphasis on their importance. As we gather the construction placed thereon by appellants, their contention is that such a finding absolutely prohibits an irrigation district assessment from being placed upon an equality with a tax as the same is known in the strictest sense of the term. However, an assessment owes its origin to the same sources as the taxing power, and we believe that that power is constitutionally authorized to fix the priorities of levies and the liens that may attach, and to empower a public corporation, which an irrigation district is conceded to be, to enforce the liens given to it.

It is conceded that the policy of the state is to encourage the formation of irrigation districts, so that the arid lands may be brought under cultivation, the welfare and comfort of its inhabitants enhanced, and the taxable value of the state enlarged. It is reasonable to suppose that in enacting legislation furthering this general policy, the Legislature intended that general taxes for state and county purposes and assessments for irrigation districts should co-exist recognizing that the one is dependent upon the other. The argument that unless the general taxes are made superior, counties, cities and towns will perish, finds little support when it is understood that the lands within an irrigation district would afford little sustenance to the inhabitants and small tax returns to the counties, cities and towns if it were not for the benefits which the formation of an irrigation district and the resulting opportunity to bring land under cultivation provide. In furtherance of this plan, the Legislature of the State of Nevada has spoken, and assured those who have advanced the capital to make the improvements that the land thus improved shall repay the amounts advanced and expended, and have enacted that a lien shall subsist upon said lands to insure the payment thereof. Such is the announced public policy. It is fair, equitable and just, and should not be struck down by the courts unless there is a very clear and compelling reason for so doing. Our consideration of the cases presented leads to the conclusion that the Legislature intended that the lien for irrigation district assessments and for general county taxes should be of equal dignity and importance and should remain a lien upon the lands in the district until paid, and thus defeat any attempt that might be made to permit taxes placed upon the lands to become delinquent and then buy in the said lands free of the irrigation district assessments, which course, if pursued to any considerable...