State v. District Court of Thirteenth Judicial Dist. in and for Carbon County

• Decision Date: 24 June 1932
• Docket Number: 6990.
• Citation: 12 P.2d 852,92 Mont. 272
• Parties: STATE ex rel. SOUDERS v. DISTRICT COURT OF THIRTEENTH JUDICIAL DIST. IN AND FOR CARBON COUNTY et al.
• Court: Montana Supreme Court

12 P.2d 852

92 Mont. 272

STATE ex rel. SOUDERS v. DISTRICT COURT OF THIRTEENTH JUDICIAL DIST. IN AND FOR CARBON COUNTY et al.

No. 6990.

Supreme Court of Montana

June 24, 1932

Action by the State, on the relation of S. M. Souders, against the District Court of the Thirteenth Judicial District in and for Carbon County and another.

Application denied, and proceeding dismissed.

John G Skinner and S. C. Merriman, both of Red Lodge, for relator.

E. P Conwell and C. C. Rowan, both of Red Lodge, for respondent.

ANGSTMAN J.

This proceeding seeks to invoke the supervisory power of this court over the action of the district court in requiring relator to deposit in court the amount of taxes, penalties and interest due to Carbon county before being permitted to maintain an action instituted by him to enjoin the issuance of a tax deed.

From the record it appears that relator commenced an action in the district court against the county, the board of county commissioners, and the county treasurer to enjoin the issuance of a tax deed after notice of application therefor had been served upon him and before the right of redemption had expired.

The notice of application for the deed states: "You will please take notice that the following described property situated in the county of Carbon, State of Montana: The lots numbered seven (7), eight (8) nine (9) ten (10) eleven (11) in Block numbered forty-two (42) in the Original Plat of the City of Red Lodge, Carbon county, Montana, was on the 1st day of October, 1923, sold for delinquent taxes; that the whole of said property was sold on said date for the sum of Thirteen Hundred Thirty-two & 19/100 Dollars ($1,332.19); that said property was struck off to Carbon county, as the purchaser, at said delinquent tax sale; and that there is now due and owing to Carbon county upon said property for taxes to date the sum of Fifteen Thousand One Hundred Seventy-eight & 65/100 Dollars ($15,178.65). That the time when the right of redemption will expire and when the purchaser will apply for a tax deed is the 1st day of April, 1931, at one o'clock P. M. of said day. The owner (or owners), mortgagee (or mortgagees), assigns (or assignees) of said mortgage (or mortgages) above described may redeem said property by paying the amount due said county and all fees, percentages, penalties and costs. Notice is hereby further given that Carbon county, State of Montana, in accordance with an order and resolution, duly made by the board of county commissioners of said county, unless the property described is in the meantime redeemed, will on the 1st day of April, 1931, apply to the treasurer of Carbon county, State of Montana, for a tax deed for said above described property." The complaint alleges that the property was in fact sold in two separate parcels and was not sold on October 1st, as recited in the notice, but on October 2, 1923; that the sum of 50 cents for each certificate of sale was included as a part of the purchase price contrary to section 2191, Rev. Codes 1921, as amended by Laws 1929, c. 31, and that therefore the two certificates were and are illegal; that the certificates are invalid because they do not recite that there was no purchaser in good faith for the property on the first day it was offered for sale, but show on their face facts which, it is contended, show that the county was a competitive bidder.

By way of conclusion the complaint alleges on information and belief that "the amount stated in said notice of application for tax deed of said property is largely in excess of the amount actually due said county for taxes on said property, and that said amount includes costs, penalties and interest that are not legal charges against said property, and said amount is not the correct amount actually due said county for taxes, penalties and interest against said above described properties."

It then alleges that the taxes assessed against the property were exorbitant, and that there was discrimination against plaintiff in the assessment and appraisement of his property during each year for which taxes are delinquent; that plaintiff has on numerous occasions appealed to the county commissioners for a reduction thereof without avail; that the taxes for each year are more than three times as great as they would have been if the property had been fairly and equitably assessed; that, notwithstanding the purchase of the property by the county in 1923, the defendants exposed the property for sale each year thereafter until and including the year 1929, and the county each year became the purchaser thereof and obtained a certificate of sale, contrary to section 2231, Rev. Codes 1921; that included in the amount specified in the notice of application for a deed as necessary to effect a redemption of the property was the cost of selling the property each year; that in consequence the notice of application is void in that it does not apprize plaintiff of the amount actually due the county.

After the complaint was filed, the court, acting under the authority of chapter 85, Laws of 1927, and by virtue of an affidavit by the county treasurer, acting for all defendants, issued an order to show cause requiring plaintiff, if he chose to question the tax sale proceedings, to deposit in court the sum of $15,178.65 on or before July 28, 1931, or show cause on that day why he should not do so. The order to show cause recites that the sum of $15,178.65 does not include any charge of duplicate certificates of sale.

In response to the order to show cause a hearing was had, after which the court made an order in which it is recited that evidence was introduced by defendants proving that the total amount of taxes due against the property was $15,178.65, and that "plaintiff and defendants having stipulated that said amounts were the total amounts levied and assessed against said property, with penalty and interest, and which are now unpaid." The order further recites that the total amount of taxes, interest, and penalties, which would have accrued if the property had been regularly and legally assessed and sold for delinquent taxes and was to be redeemed by the owner, was $15,178.65 on April 1, 1931. The order then requires plaintiff to pay into court this amount with interest at 8 per cent. per annum from April 1, 1931, and that unless so paid, plaintiff shall be deemed to have waived any defects in the tax proceedings and any right of redemption, and that title shall be quieted in defendants. The propriety of this order is questioned in this proceeding.

The order segregated the tax due on the property embraced in each certificate of sale and afforded plaintiff the opportunity to deposit the amount due against the property embraced in each certificate of sale separately without depositing that due against the other, if he so desired. It should also be said that, since the action was commenced in the court below, a tax deed was issued.

Relator contends (1) that chapter 85, Laws of 1927, has no application to a proceeding to enjoin the issuance of a tax deed; and (2) that chapter 85 is invalid for several reasons.

Is chapter 85 applicable to an action to enjoin the issuance of a tax deed? It authorizes the making of an order requiring the deposit of money in court "in any action *** brought to set aside or annul any tax deed, or to quiet title, or to determine the rights of such purchaser, including the county, or his successors, to real property claimed to have been acquired by reason of tax proceedings or a tax sale. ***" Section 1. The action commenced by relator was one to enjoin the issuance of a tax deed. Its prosecution will result in an adjudication of the rights of the county in the property claimed to have been acquired by reason of a tax sale, and thus falls within the terms of the statute. The act relates not alone to proceedings to set aside tax deeds, but applies also to a tax sale prior to the issuance of a deed.

Is chapter 85 valid? It is contended that the title to the act is insufficient to meet the requirements of section 23 of article 5 of the Constitution. The title, among other things, states that the act is one "providing a summary method whereby such purchasers at tax sales, or their successors, may have their respective rights adjudicated." The requirement of a deposit of the amount of taxes due is germane to the matters expressed in the title, and hence sufficient to meet the requirements of section 23, article 5.

The next attack upon chapter 85 is that it is in conflict with section 6 of article 3 of the Montana Constitution, which provides: "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character; and that right and justice shall be administered without sale, denial, or delay."

The authorities are conflicting as to whether the Legislature may require a party questioning a tax deed to make a deposit for the purpose of reimbursing the holder of the deed before prosecuting the action. We think the better reasoned cases support the view that such an act is valid, when applied to a case such as this, where no attack is made upon the tax as such, but only upon the tax sale proceedings.

Cooley in his work on Taxation, in commenting upon a court decision condemning such a statute, said: "If this statute were confined to the requirement of a payment or tender of legal taxes and costs for which the sale may have been made, the soundness of the conclusion might well be made a question." Cooley on Taxation (4th Ed.) § 1508. Continuing in the same section, that eminent author says: "No one is denied a remedy in the courts when he is merely required to submit to a condition which, under the circumstances, is...