Prince v. Ypsilanti Sav. Bank

• Decision Date: 30 April 1929
• Docket Number: Case Number: 18695
• Citation: Prince v. Ypsilanti Sav. Bank, 282 P. 282, 140 Okla. 131, 1929 OK 191 (Okla. 1929)
• Parties: PRINCE, County Treas., v. YPSILANTI SAVINGS BANK.
• Court: Oklahoma Supreme Court

1929 OK 191

282 P. 282

140 Okla. 131

PRINCE, County Treas., v. YPSILANTI SAVINGS BANK.

Case Number: 18695

Supreme Court of Oklahoma

Decided: April 30, 1929

Syllabus

¶0 1. Constitutional Laws--Obligations of Municipal Bonds not Subject to Impairment by Change in Law.

The laws existing at the time of the issuance of municipal bonds and under the authority of which they are issued, enter into and become a part of the contract in such a way that the obligations of the contract cannot thereafter be in any way impaired or its fulfillment hampered or obstructed by a change in the law.

2. Municipal Corporations--Special Assessments--Delinquent Tax Sales by County Treasurer Sole Method of Enforcing Liens.

The statutes of this state (sections 9370 to 9749, inclusive, Comp. St. 1921) provide a full and comprehensive system by which delinquent taxes on real estate may be collected by a sale of such real estate by the county treasurer, the collecting agency. Such method, being the only one authorized by the statutes, is exclusive for the enforcement of such tax liens, including special assessments for street improvement.

S. Same--Statutory Procedure for Collection.

As to special assessments levied under and by virtue of art. 12. chap. 10, Revised Laws 1910, when such assessments become delinquent and are certified to the county treasurer, and by him placed upon the delinquent tax list, they are to be collected as other taxes, and the lots or tracts against which assessments were levied may be sold by the county treasurer for such delinquent special assessments, together with other delinquent taxes; and if there be no bidder at such sale, the county treasurer may bid in such land in the name of the county.

4. Same--Resale for Delinquent Ad Valorem Taxes and Special Assessments -- Distribution of Proceeds.

Section 7409, Revised Laws 1910, authorized the county treasurer to sell to the highest bidder any real estate that had been bought in by the county and remained unredeemed for two years, and in such case, where the original sale was for both ad valorem taxes and special assessments, it is the duty of the county treasurer to distribute the proceeds ratably between the ad valorem tax lien and the special assessment lien.

5. Same -- Tax Sale not Effective to Extinguish Lien for Special Assessments not Yet Due.

In such case where land is regularly sold for delinquent ad valorem taxes, together with delinquent special assessments, such sale extinguishes the lien for both ad valorem taxes and the installment of the special assessment included in the sale, and does not affect the lien of special assessments not then due.

6. Same--County Treasurer not Required to Reinstate upon Tax Rolls Special Assessments Which Had Received Their Pro Rata of Proceeds of Tax Sale.

Where real estate has once been legally sold for delinquent ad valorem taxes, together with delinquent installments of special assessments, and the sum received has been distributed by the county treasurer as provided by law, and such taxes and installments of special assessments are canceled of record on the tax rolls, the county treasurer is under no legal duty to reinstate such special assessments upon the tax rolls.

Commissioners' Opinion, Division No. 2.

Error from District Court, Lincoln County; Hal Johnson, Judge.

Action by Ypsilanti Savings Bank against Paul Prince, County Treasurer of Lincoln County. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with direction.

Roscoe Cox, County Attorney, and Emery A. Foster, for plaintiff in error.

W. L. Johnson, for defendant in error.

Randell S. Cobb, Asst. Atty. Gen., amicus curiae.

DIFFENDAFFER, C.

¶1 This is an action brought by defendant in error against Paul Prince, county treasurer, plaintiff in error, to procure a writ of mandamus requiring and directing the defendant, as county treasurer, to reinstate certain paving assessments upon the tax rolls of Lincoln county.

¶2 Upon an amended petition filed in the district court an alternative writ was issued. An answer was filed and the cause was tried upon an agreed statement of facts, resulting in a judgment making the alternative writ peremptory. Defendant, after unsuccessful motion for new trial, brings this appeal.

¶3 The record discloses that, on the 15th day of January, 1910, the city of Chandler issued certain paving bonds, under authority of the then existing (1907-08) paving law, art. 12, chap. 10, Rev. Laws 1910, which bonds were payable solely from assessments levied against the lots and tracts of land benefited by the paving.

¶4 Defendant in error purchased, and at the date of filing this action was the owner of, six of these bonds of the denomination of $ 500 each, numbered 12 to 17, inclusive. The bonds were due and payable in 1912 and 1913. Payments had been made on each of the bonds, but there remained unpaid on the six bonds, exclusive of interest, some considerable sum, the amount of which is not definitely shown. The agreed statement of facts, after certain formal statements over which there is no controversy, reads as follows:

"It is further agreed that the assessment against the property was lawfully made and certified according to the law and as provided by the statutes, to the county treasurer of Lincoln county, Okla., upon the lots as set out in the alternative writ and the petition; and the respective lots in said paving district, as set out in the alternative writ, were sold each year from time to time for delinquent taxes including paving taxes then due and delinquent according to the then existing statutes, and that tax deeds were regularly issued from time to time according to the then existing statutes upon sales held by the treasurer according to law, and that in said tax sales the paving taxes were included with the ad valorem taxes, and that upon the sale and issuance of the deeds, the treasurer followed the then statutes and noted on the record that after each lot so sold that the said paving taxes were canceled by deed, and before and since such sales the present county treasurer and his predecessors in office have refused to change the record, have refused to collect the taxes, or to resell for the paving taxes; that the money received from the sales were disbursed in accordance with the then statutes.

"It is hereby agreed that the disbursements of the money were made as shown by the records of the county treasurer's office for the respective years, and the records of the county clerk's office for the respective years, and the city clerk's office for the respective years, and the records of the city treasurer's office for the respective years, and it is further agreed by the parties that the moneys derived from the sale or resale of the lots set up in the amended alternative writ were not applied to the payment of the bonds, but were disbursed by the county treasurer as provided by then existing statutes.

"And it is further agreed by the parties that the bonds 12 to 17, respectively, were due and payable in the year of 1912 and 1913, respectively, and that the issue is raised that plaintiff's action is barred by the statutes of limitation as set out in paragraph 4 of defendant's amended answer to the alternative writ, and that said issue is submitted to the court.

"It is further agreed that the lots, blocks, and parcels of land set out in the amended alternative writ were and are owned by different owners; it is further agreed that the records show that the said lots were all sold for taxes by the county treasurer in the year 1917 and prior thereto, and that for the years 1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917, 1918 and 1919, said lots were sold for delinquent taxes, including paying taxes and that in 1917 all of such lots were sold at a resale, all as shown by the county records heretofore agreed upon, and that the county treasurer has issued deeds to the respective lots to the respective purchasers, and that the respective purchasers, or their assigns, are the present holders of the deeds.

"It is further agreed that the present defendant, Paul Prince, went into office on the first Monday in July, 1923, and all the sales were had prior to that time."

¶5 The controversy seems to be reduced to a single proposition. Plaintiff in error in his brief says:

"The only point to be decided in the present case is whether a resale under the tax law, as it existed from 1907-8 to 1919, canceled and extinguished the paving tax included with other taxes in the sale."

¶6 Defendant in error in its brief says:

"There appears to be but one assignment of error, and but one point to be decided, to wit: Does a resale cancel and extinguish a paving tax (see brief plaintiff in error, page 38)? We accept the challenge and take up the cudgel exactly as laid down, and say that the resale of the land for delinquent taxes did not cancel the paving tax. It is our contention that the paving tax once assessed against the lots becomes a perpetual lien, and can be canceled only when the tax is paid, or the property sold with a view to payment on the special assessment, and that any sale of the property by the terms of which the proceeds were not to be applied to the payment of the special assessment is unconstitutional and void."

¶7 Defendant in error, in its original brief, contends that this case comes within the law as announced in Perryman v. Home Builders, 121 Okla. 150, 248 P. 605, and Moore v. Otis, 275 F. 747. In its brief, in reply to the brief of the Attorney General, the defendant in error contends that there is no law in this state for the sale of real estate for special assessments.

¶8 The contention of the plaintiff in error is that, under the law as it existed at the time the bonds were issued, if the land did not sell for enough on resale to pay the tax and assessments, the bondholder lost that much of the bond. It must be borne in mind that the resale here under consideration was not under the resale law of 1919 (...