State, ex rel. State Land Board v. Blake

• Decision Date: 06 April 1933
• Docket Number: 5133
• Court: Utah Supreme Court
• Parties: STATE, by and through STATE LAND BOARD, v. BLAKE et al. (MILLARD COUNTY REALTY Intervener)

20 P.2d 871

88 Utah 584

STATE, by and through STATE LAND BOARD, v. BLAKE et al. (MILLARD COUNTY REALTY Intervener)

No. 5133

Supreme Court of Utah

April 6, 1933

Opinion on Rehearing, 88 Utah 600, 56 P.2d 1347.

Mandamus proceeding by the State, by and through its State Land Board against James S. Blake and others, in which the Millard Realty Company intervened.

ALTERNATIVE WRIT MADE PERMANENT.

Geo. P Parker, Atty. Gen., and Byron D. Anderson and William A. Hilton, Deputies Atty. Gen., for plaintiff.

Tangren & Crafts, of Delta, for defendants.

Soule & Spalding, of Salt Lake City, for intervener.

ELIAS HANSEN, Justice. STRAUP, C. J., and FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., concur.

OPINION

ELIAS HANSEN, Justice.

In its verified petition filed in this court, plaintiff prayed for a writ of mandamus commanding the defendants to execute and deliver releases and discharges of several liens for the payment of all bonded indebtedness and equalized assessments of benefits and taxes upon a number of tracts of land owned by plaintiff in Millard county drainage district No. 3 in Millard county, Utah. An alternative writ was issued commanding the defendants to make and execute the written releases as prayed or in lieu thereof to show cause why they had not done so. Within the time fixed by the writ for the return the defendants answered. The Millard Realty Company was, by an order of this court, permitted to intervene. It filed in the cause a complaint in intervention and also a general demurrer and an answer to the petition for the writ. Plaintiff filed in the cause a motion to strike the complaint in intervention and a demurrer thereto. Upon the pleadings thus made up the cause was submitted for determination.

It is in substance alleged in the petition for the writ that Millard county drainage district No. 3 was organized in the year 1918; that soon thereafter the district incurred a bonded indebtedness; that in order to pay such bonded indebtedness and to provide for the maintenance and other expenses of the district a tax was levied from year to year upon the lands within the district; that the state of Utah acquired various tracts of land within the district after its organization, which tracts of land are described by metes and bounds in the petition.

That on January 2, 1931, plaintiff applied to and received from defendant W. J. Oppenheimer, secretary of the board of supervisors of Millard county drainage district No. 3, a written statement showing the amount of the unpaid equalized drainage district benefit assessments upon the various tracts of land described in plaintiff's petition; that on January 9, 1931, petitioner presented such written statement and tendered payment to the county treasurer of Millard county, Utah, the total amount of all unpaid equalized drainage district benefit assessments on the tracts of land described in the petition; that the county treasurer accepted the payments so tendered and issued a receipt showing that all unpaid equalized drainage district benefit assessments were fully paid on each of the tracts of land described in the petition; that one copy of such receipt was presented to and filed with defendant Arthur H. Reeve, treasurer of the Millard county drainage district No. 3; that plaintiff demanded that the board of supervisors of such district execute and deliver releases of the liens on the land described in its petition from the "payment of all the bonded indebtedness now existing against said district and from the payment of any bonds now issued or that may be hereafter issued to refund the same, or any part thereof, and from the payment of any notes or any warrants of the district heretofore issued or that may hereafter be issued in payment of interest on such indebtedness or refunded indebtedness all as provided for by chapter 32, Laws of Utah 1929. That upon presentation of the copies and filing of the above described receipts with the treasurer of said drainage district as required by law, showing payment in full of the unpaid equalized benefit assessments and/or taxes against said tracts of land, it became the duty of defendants herein to issue and deliver to your petitioner a written release as provided for by chapter 32, Laws of Utah 1929." That defendants without just cause or excuse failed and refused to issue the releases to which petitioners are entitled. Plaintiff prayed for an order of this court commanding the defendants to make, execute, and deliver releases of the lands described in its petition from the liens of the bonded indebtedness of the drainage district.

Defendants in their answer admitted generally the facts alleged in the petition but denied that they have, without just cause or excuse, refused to issue the releases. As an affirmative defense defendants alleged:

"That the redemption certificates issued by the County Treasurer of Millard County, showed upon their face that each separate tract of land was redeemed from all delinquent drainage taxes upon the payment by the plaintiff of the sum of $ 10.00 for each separate tract of land so redeemed. That as a matter of fact the amount of sum of delinquent drainage taxes against each separate tract of land was in excess of $ 200.00."

Defendants further alleged that the certificates of sale for the nonpayment of taxes issued against the lands described in the petition have passed out of the hands of the drainage district and into the hands of others who claimed that defendants are without authority in law to issue the releases sought by plaintiff. The fourteen releases prayed for by plaintiff were executed by the defendants and delivered to the clerk of this court. The releases so executed show upon their face that the plaintiff has paid to the county treasurer of Millard county a total of $ 48,671.60, the same being the total amount of benefits and taxes with accrued interest thereon levied and assessed against the lands described in the petition filed in this cause for a writ of mandamus.

Defendants disclaimed any interest in this controversy and prayed merely that "this court issue such order as shall be just and equitable and according to the laws of the State of Utah."

In its answer and complaint in intervention the intervener in substance alleged: That intervener, Millard Realty Company, is a foreign corporation conducting and authorized to conduct its business in the state of Utah; that on August 1, 1918, the Millard county drainage district No. 3 issued and sold drainage district bonds in the total sum of $ 1,250,000; that during each and every year from 1919 to 1929, inclusive, drainage taxes have been assessed and levied against each and every tract of land within the drainage district including the tracts of land described in plaintiff's petition; that some of the drainage taxes so levied against the land described in plaintiff's petition became delinquent and were sold for delinquent taxes and certificates of sale were issued therefor to the Millard county drainage district; that on October 25, 1929, Arthur A. Sipfle, Sherwood Green, and George S. Ingraham were the owners of drainage district bonds numbered 1 to 629, inclusive, each in the principal sum of $ 500, all maturing on August 1, 1928; that on October 29, 1929, they filed a suit in the United States District Court for the District of Utah for the purpose of recovering a judgment on the bonds so held by them; that on March 19, 1930, a judgment was rendered in such suit in their favor and against Millard county drainage district No. 3 in the sum of $ 354,756; that the judgment so obtained was assigned to the intervener, Millard Realty Corporation; that on August 27, 1930, execution was issued out of the United States District Court in the above-mentioned cause and the United States marshal for the district of Utah levied upon all of the property of the drainage district subject to execution; that on September 23, 1930, the United States marshal offered for sale and sold to the intervener all of the right, title, and interest of the drainage district in all of the delinquent drainage district taxes and tax sale certificates held by the district against each and every tract of land described in plaintiff's petition; that pursuant to such sale the United States marshal executed and issued to the intervener a marshal's certificate of sale to all of such delinquent drainage taxes and tax sale certificates; that intervener is the holder and owner of the delinquent drainage taxes, drainage tax sale certificates, and tax titles in and to each and all of the tracts of land described in plaintiff's petition; and that the board of supervisors of the drainage district is without legal power to release or discharge the liens upon the lands claimed by the plaintiff. Intervener prays that the petition for a writ of mandate be denied and that the alternative writ heretofore issued be quashed.

In support of the demurrer to the petition for the writ it is urged on behalf of the intervener: That the petition is fatally defective in that it fails to allege that all of the drainage taxes upon plaintiff's land have been paid. It is alleged in the petition that all unpaid equalized drainage benefit assessments have been paid. Under the Drainage Act the basis for the levy of drainage taxes is the equalized drainage benefit assessments. If the equalized drainage benefit assessments on plaintiff's land are fully paid as is alleged in the petition, there is no longer any basis for a levy of any drainage taxes for the payment of the bonded indebtedness of the district. Campbell v. Millard County Drainage District No. 3, 72 Utah 298, 269 P. 1023. Under the Drainage Act the levy of taxes is the means provided for the collection of the equalized...