Sanderson v. Bateman

• Decision Date: 16 February 1927
• Docket Number: No. 6078.,6078.
• Citation: 78 Mont. 235
• Parties: SANDERSON v. BATEMAN, County Treasurer.
• Court: Montana Supreme Court

78 Mont. 235

SANDERSON

v.BATEMAN, County Treasurer.

No. 6078.

Supreme Court of Montana.

Feb. 4, 1927.

Rehearing Denied Feb. 16, 1927.

Original proceeding by John A. Sanderson, receiver of Commercial National Bank of Miles City, against Joseph Bateman, as Treasurer of Custer County, to obtain a writ of mandate commanding him to permit redemption of lands described in plaintiff's complaint. Proceeding dismissed.

Loud & Leavitt, of Miles City, for plaintiff.

L. A. Foot, Atty. Gen., and A. H. Angstman, Asst. Atty. Gen., for defendant.

Sterling M. Wood, of Billings, amicus curiæ.

CALLAWAY, C. J.

This is a proceeding commenced originally in this court by the plaintiff, as receiver of the Commercial National Bank of Miles City, against the treasurer of Custer county, to obtain a writ of mandate commanding him to permit the redemption of the lands described in plaintiff's complaint.

Omitting formal allegations, the complaint shows the receiver to be the holder of title to the lands derived through mortgage foreclosure proceedings. Plaintiff's predecessor in interest, while owner of the lands, permitted the taxes levied and assessed thereon for the year 1920 to become delinquent, and in 1921 the lands were sold for the taxes. Upon the sale Custer county became the purchaser, and received a certificate of tax sale therefor. No assignment of the certificate of sale has been made by Custer county, which is now the owner and holder thereof. Plaintiff's predecessor permitted the taxes levied and assessed against the lands for the years 1921, 1922, 1923, 1924, and 1925 to become delinquent, and the treasurer duly noted the delinquencies upon the proper records of his office. The lands were sold by the county for the delinquent taxes of the subsequent years under its certificate of sale issued for the 1920 taxes.

Prior to the date of filing the complaint, the plaintiff receiver tendered to the treasurer the amount of the original tax levied and assessed upon the lands for the years 1920, 1921, and 1922, and also an amount sufficient to pay the delinquent taxes, with interest and legal charges for the years 1923, 1924, 1925, and 1926. It is alleged that the treasurer wrongfully and unlawfully refused to accept the tender, and refused to permit the plaintiff to redeem the lands from the delinquent tax sales, unless plaintiff would pay to the treasurer 10 per cent. “penalty,” publication charges, and interest at the rate of one per cent. per month, upon the 1920, 1921, and 1922 taxes, respectively. The complaint then sets out the provisions of chapter 63 of the Session Laws of the Eighteenth Legislative Assembly, and it is alleged that this chapter continued in force until 1925, when it was repealed by chapter 77 of the Session Laws of the Nineteenth Legislative Assembly, which also is set out in the complaint. The complaint contains adequate allegations setting forth the reasons for asking leave to bring this action as an original proceeding in this court. The defendant has appeared and filed a general demurrer to the complaint. The case has been argued ably by counsel for plaintiff and defendant as well as by amicus curiæ.

In 1920 the law required the county treasurer, within 10 days after the receipt of the duplicate assessment book from the county clerk (section 2161, R. C. 1921), to publish a notice specifying that taxes would be delinquent on the 30th day of November next thereafter at 6 o'clock p. m., and that, unless paid prior thereto, 10 per cent. would be added to the amount thereof (chapter 15, Session Laws 1917, p. 15, afterward section 2169, R. C. 1921). (For convenience the sections of the Revised Codes of 1921 are used, unless otherwise specified, rather than the corresponding sections of the Revised Codes of 1907; the sections being identical except as to numbers.)

Section 2175, R. C. 1921, provided:

“On the thirtieth day of November of each year, at six o'clock p. m., all unpaid taxes are delinquent, and thereafter the county treasurer must collect, for the use of the county, an addition of ten per cent.”

On the third Monday of December the treasurer was required to make settlement with the county clerk, and to deliver to him “a complete delinquent list of all persons and property then owing taxes.” Sections 2176-2179, R. C. 1921. After settlement with the county treasurer, the county clerk was required to charge him “with the amount of taxes due on the delinquent list, with the ten per cent. added thereto, and within three days thereafter deliver the list, duly certified, to such county treasurer.” Section 2180, R. C. 1921. The treasurer was then required to publish the delinquent tax list with a notice that, unless the taxes delinquent, together with the costs and percentage be paid, the real property would be sold at public auction. Sections 2182, 2183, R. C. 1921.

Section 2188, R. C. 1921, provided:

“The county treasurer must collect, in addition to the taxes due on the delinquent list and ten per centum added thereto, fifty cents on each lot, piece, or tract of land separately assessed, and on each assessment of personal property, which must be paid to the county to pay the cost of such publication.”

At the sale, if no purchaser in good faith appeared (section 2191, R. C. 1921), the county treasurer was required to strike off the property to the county as the purchaser and to file “the duplicate certificate of sale” in his office, in which case he made an entry “sold to the county” on the duplicate assessment book opposite the tax, and thereupon he was entitled to be “credited with the amount thereof in the settlement.” The duplicate certificate of sale referred to in section 2191 is provided for in section 2194, R. C. 1921.

Section 2207, R. C. 1921, enacted as section 1 of chapter 151, Laws of 1917, provides:

“At any time after any parcel of land has been bid in by the county as the purchaser thereof for taxes, as provided in section 2191, the same not having been redeemed, the county treasurer shall assign all the right of the county therein, acquired as such sale, to any person who shall pay the amount for which the same was bid in, with interest thereon at the rate of one per cent. per month, and the amount of all subsequent delinquent taxes, penalties, costs, and interest, as provided by law, upon the same from time to time when such tax became delinquent. * * *”

Interest at the rate of one per cent. per month must be collected on such delinquent taxes from the time they were first delinquent until paid. Section 2221. In case property sold for taxes is purchased by the county, pursuant to section 2191, supra, it must be assessed the next year for taxes in the same manner as if it had not been so purchased. Section 2231. Property sold for taxes is subject to redemption (section 2210), but, in case it is sold to the county, and is subsequently assessed pursuant to section 2231, “no person must be permitted to redeem from such sale, except upon payment also of the amount of such subsequent assessment, costs, fees, and interest.” Section 2233, R. C. 1921.

Section 2234 provides in part:

“Whenever property sold to the county, pursuant to the provisions of this chapter, is redeemed as herein provided, the moneys received on account of such redemption must be distributed as follows: The original tax and twenty per cent. paid in redemption must be apportioned between the state and county, in the same proportion that the state tax bears to the county tax, and the balance must be paid to the county.”

It would seem clear from the foregoing sections that, when the lands of plaintiff's predecessor in interest were struck off to the county for the 1920 taxes, the owner was then liable to pay the taxes due upon November 30th of that year prior to six o'clock p. m., and 10 per cent. in addition thereto, the costs allowed by statute, and interest at the rate of one per cent. per month from the time the tax was first delinquent.

When the owner did not pay the taxes assessed for 1921 prior to 6 o'clock p. m. of November 30th, the taxes became delinquent, and a 10 per cent. addition was made thereto. Section 2175, supra. Interest began to run upon the delinquent tax from that date at one per cent. per month. The same is true of the 1922 taxes. For these amounts the property was liable.

In Hilger v. Moore, 56 Mont. 146, 182 P. 477, this court said:

“Speaking strictly, there is but one subject of taxation-persons, natural or artificial. All taxes are levied against the person, not against property. It is the owner who is taxed because of his ownership, and his property but serves as the basis for computing the measure of his liability and as security for the discharge of the lien which the tax imposes.” State v. Camp Sing, 18 Mont. 128, 44 P. 516, 32 L. R. A. 635, 56 Am. St. Rep. 551.

In order to redeem the property from tax sale, the owner, or his successor in interest, had to pay the amount of the taxes, additions, interest, and costs. This was the situation when the Eighteenth Legislative Assembly enacted chapter 63, Session Laws of 1923, p. 135. Section 1 of that act reads as follows:

“That from and after the passage and approval of this act, any person having an interest in real estate heretofore sold for taxes to any county or which has been struck off to such county when the property was offered for sale, and no assignment of the certificate of such tax sale has been made by the county making such sale, shall be permitted to redeem the same by paying the original tax plus seven per cent. interest from the date of sale.”

Section 2:

“All acts and parts of acts in conflict herewith are hereby repealed.”

This act was repealed by chapter 77, Session Laws of 1925, p. 102.

Much effort has been expended by counsel touching the effect of chapter 63 upon prior conflicting statutes and the repeal of that chapter by chapter 77, supra, and as to the effect of chapter 96 Session Laws of 1923, p. 257, amending...