Petters & Company, a Corp. v. Nelson County
| Decision Date | 21 July 1938 |
| Docket Number | 6536 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Nelson County; P. G. Swenson, Judge. Plaintiff appeals from an order sustaining a demurrer to the complaint.
Action by Petters & Co. against Nelson County to recover the amount paid by the plaintiff for a tax sale certificate. From an order sustaining defendant's general demurrer to plaintiff's complaint, the plaintiff appeals.
Affirmed.
Syllabus by the Court.
1. It is presumed that the Legislature intends a statute to operate prospectively only, and that it does not intend a statute to have a retrospective operation unless it manifests such intent clearly.
2. A sale made in December, 1922, for a tax levied in 1921 created a contract between the state and the purchaser, the terms of which are embraced in the law in force when the sale was made.
3. Chapter 324, Laws 1923, authorizing a refund to the holder of a tax sale certificate against land sold under contract by the state of North Dakota in the event the contract for sale has been cancelled, operates prospectively only.
4. Section 2, Chapter 264, Laws 1927, authorizing a refund to the holder of a tax sale certificate against a tract of land sold by the state under contract when the contract has been cancelled by the state, operates to make a donation to such tax sale certificate holder in violation of Section 185 of the State Constitution insofar as said Section provides that such refund be made on tax sale certificates issued before such law was enacted.
Nestos & Herigstad, for appellant.
The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature, and it is true that this intention "must be the intention as expressed in the statute, and where the meaning of the language used is plain it must be given effect by the courts or they would be assuming legislative authority." 36 Cyc. 1106; State ex rel. Langer v. Kositzky, 38 N.D. 616, 166 N.W. 534, L.R.A.1918D, 239; Ford Motor Co. v. State, 231 N.W. 885.
Where "plain and unambiguous words are used in a statute, the statute is not rendered subject to construction." District of Columbia v. Thompson, 281 U.S. 25, 74 L. ed. 677, 50 S.Ct. 172; State ex rel. Farmers State Bank v. Wallace, 187 N.W. 728; 26 Cyc. 1106; 26 Am. & Eng. Enc. Law, 598.
Construction or interpretation becomes necessary only in cases where an act is ambiguous or of doubtful meaning. State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561, L.R.A.1918B, 166; 25 R.C.L. 961; Langer v. Totten, 44 N.D. 557, 175 N.W. 563; Beggs v. Paine, 15 N.D. 36, 109 N.W. 322.
Olaf M. Thorsen, State's Attorney, for respondent.
Statutes are presumed to be prospective and not retroactive in their operation in the absence of a clear legislative intent to the contrary. Adams & Freese v. Kenoyer, 17 N.D. 302, 116 N.W. 98; 25 R.C. L. 787.
Statutes will be construed to operate prospectively only, unless an intent to the contrary clearly appears. E.J. Lander & Co. v. Deemy, 46 N.D. 273, 176 N.W. 922; American Invest. Co. v. Beadle County, 5 S.D. 410, 59 N.W. 212; Iowa & D. Land Co. v. Hyde County, 27 S.D. 435, 131 N.W. 501.
It is held by weight of authority that one who has purchased land at a tax sale cannot, without statutory authority, recover back the price paid from the municipality by which the money was received if it subsequently appears that the title acquired by him was invalid. 26 R.C.L. 391; State v. Krahmer, 112 Minn. 372, 128 N.W. 288.
The purchaser at a tax sale buys under the rule of caveat emptor and in the absence of a statute authorizing it has no right of action against the taxing authorities for the purchase money paid in case the tax certificate purchased proves invalid. Budge v. Grand Forks, 1 N.D. 309, 47 N.W. 390; Tyler v. Cass County, 1 N.D. 369, 48 N.W. 232; Iowa & D. Land Co. v. Barnes County, 6 N.D. 601, 72 N.W. 1019; State Finance Co. v. Beck, 15 N.D. 374, 109 N.W. 357; Parrott v. Abernathy, 58 S.D. 603, 237 N.W. 900, 77 A.L.R. 818. See annotation in 77 A.L.R. 824; State v. Bruce, 50 Minn. 491, 52 N.W. 970.
It is a well settled rule the contemporaneous construction of a statute by those charged with its execution and application, especially when it has long prevailed, while not controlling, is entitled to great weight, and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous. 25 R.C.L. 1043; Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883; 25 R.C.L. 1047.
Alvin C. Strutz, Attorney General, and C. E. Brace, Assistant Attorney General, amici curiae.
The presumption is that the legislature intended that the statute should operate prospectively only. Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883.
Unless the contrary intent is clearly indicated, the amended statute is to be construed as if the original statute had been repealed, and a new and independent act in the amended form had been adopted. Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883; 25 R.C.L. 1067.
The rights of one under a tax certificate are determined by the laws in force when the certificate is acquired. Cooley, Taxn. 4th ed. § 1453.
A purchase at a tax sale is a contract. Roberts v. First Nat. Bank, 8 N.D. 504, 79 N.W. 1049.
A tax sale constitutes a contract between the state and the purchaser, the terms of which are embraced in the laws in force when the sale was made. Fisher v. Betts, 12 N.D. 197, 96 N.W. 132; Blakemore v. Cooper, 15 N.D. 5, 106 N.W. 566, 4 L.R.A.(N.S.) 1074, 125 Am. St. Rep. 574; Reid v. Federal Land Bank, 166 Miss. 392, 148 So. 392; Blakely v. Mann, 153 Minn. 415, 190 N.W. 797; State v. Osten, 91 Mont. 76, 5 P.2d 562; Walker v. Ferguson, 176 Ark. 625, 3 S.W.2d 694; Rowlands v. State Loan Bd. 24 Ariz. 116, 207 P. 359; Erskine v. Nelson County, 4 N.D. 66, 58 N.W. 348, 27 L.R.A. 696.
This is an appeal from an order sustaining a general demurrer to plaintiff's complaint. The facts alleged in the complaint are substantially as follows:
That some time prior to 1921 a quarter section of school land (NE 1/4 section 36, Twp. 150, Rg. 60) in Nelson county was sold on contract, pursuant to the laws in such cases made and provided; that thereafter taxes were levied against said land for the year 1921, aggregating $ 118.65; that said taxes were not paid and became delinquent and that said tract of land was thereafter offered for sale at the regular delinquent tax sale in December, 1922, and sold to the plaintiff for the amount of delinquent taxes, penalty, interest, and cost of sale; that thereafter a tax sale certificate, in due form, was issued to the plaintiff pursuant to, and as evidence of, said sale; that thereafter, and on or about January 30th, 1925, the state land department cancelled the contract issued to the purchaser of said tract of land, and on March 16th, 1925, said state land department notified the county auditor of said Nelson county of such cancellation and instructed the county commissioners of such county to abate all taxes levied against said land, and to make proper refunds on any outstanding tax sale certificates; that thereafter, on or about May 24th, 1937, the plaintiff made application to the defendant county for the money paid by it at the said tax sale for said tax sale certificate, but that the defendant county refused to refund to the plaintiff the money paid by it for said tax sale certificate. Judgment is demanded for the amount paid by the plaintiff for the tax sale certificate, together with interest thereon at 7% per annum from the date of such certificate.
It is well settled that the rule of caveat emptor applies to a tax sale in this state; that the purchaser of a tax sale certificate buys at his peril, and that no liability exists on the part of a taxing municipality to refund money paid for a void tax sale certificate, "in the absence of a regulating statute." Budge v. Grand Forks, 1 N.D. 309, 48 N.W. 232.
The tract of land in question here was granted to the state of North Dakota by the United States of America for the support of the common schools. Enabling Act, § 10. The state Constitution provides that such lands when "contracted to be sold by the state shall be subject to taxation from the date of such contract." N.D. Const. § 158.
The law in force at the time of the tax sale involved in this action provided that lands "contracted to be sold by the state shall be subject to taxation from the date of such contract and the taxes assessed thereon shall be collected and enforced in like manner as against other land;" and that when a contract is not declared null and void by the board of university and school lands ...
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