State v. Osten

• Decision Date: 25 November 1931
• Docket Number: 6931.
• Parties: STATE ex rel. CITY OF BILLINGS v. OSTEN, County Treasurer.
• Court: Montana Supreme Court

5 P.2d 562

91 Mont. 76

STATE ex rel. CITY OF BILLINGS v. OSTEN, County Treasurer.

No. 6931.

Supreme Court of Montana

November 25, 1931

Appeal from District Court, Yellowstone County; Robert C. Stong Judge.

Mandamus proceeding by the State of Montana, on the relation of the City of Billings, against George G. Osten, as County Treasurer of Yellowstone County, Mont. From a judgment entered upon an order quashing an alternative writ of mandate, and dismissing the proceeding, relator appeals.

Affirmed.

George S. Smith, of Billings, for appellant.

L. A Foot, Atty. Gen., C. N. Davidson, Asst. Atty. Gen., and R. C Dillavou, of Billings, for respondent.

CALLAWAY C.J.

This is an appeal from a judgment entered upon an order quashing an alternative writ of mandate, and dismissing the proceeding.

In its application for the writ, relator alleged the creation of an improvement district in the city of Billings, in which the lots in question are included, for the purpose of constructing a trunk sanitary sewer, the passage of a resolution assessing and levying upon each lot or parcel of land within the district a special assessment to be paid in twelve annual installments, beginning with the year 1921; that there were assessed and levied the following amounts against the lots affected by this proceeding: Against those in what we shall call parcel A, a total of $130.92, of which the sum of $10.98 is payable in the year 1931; and against those in what we call parcel B, the sum of $185.39, of which the amount payable in 1931 is $14.64.

Parcel A was sold, for delinquent general taxes levied and special assessments payable in 1925, to Yellowstone county on January 21, 1926, the county receiving a certificate of sale therefor. On April 9, 1926, the county assigned the certificate of sale to P. S. Corkins, who assigned it to Robert N. Jones on December 12, 1930. Thereafter such proceedings were had that a tax deed was issued to Jones by the county treasurer on April 21, 1931, and title has been vested in him ever since.

Parcel B was sold, for delinquent general taxes levied and special assessments payable in 1926, to Yellowstone county on January 21, 1927, the county receiving a certificate of sale therefor; it received a deed on August 4, 1930.

The city has not provided for the collection of taxes by the city treasurer, and that duty has devolved upon the county treasurer, who refuses to make collection of the special assessment alleged to be due in 1931. The city prayed for the issuance of a writ of mandate commanding the county treasurer to collect the special assessments for the year 1931.

If section 2215, Revised Codes 1921, the statute in effect when the tax sales were held, had continued without amendment, admittedly the tax deeds would have cut off all prior tax liens. State ex rel. City of Great Falls v. Jeffries, 83 Mont. 111, 270 P. 638. Section 2215 then provided that "the deed conveys to the grantee the absolute title to the lands described therein, as of the date of the expiration of the period for redemption, free of all incumbrances, except the lien for taxes which may have attached subsequent to the sale. ***" But it is contended by relator that the provisions of section 2215 were amended by section 9 of chapter 100, Session Laws of 1929, and respondent does not oppose this view. The case was presented upon that theory, and we shall proceed upon that assumption. Section 1 of chapter 100 provides that "the purchaser of property hereafter sold for delinquent taxes or his assigns desiring a tax deed thereto may at his option, in addition to all other methods now provided by law," bring an action to obtain from the county treasurer a deed for the property involved. The course to be pursued is prescribed with some particularity.

Section 9 of chapter 100 provides: "The deed hereafter issued under this or any other law of this State shall convey to the grantee the absolute title to the lands described therein as of the date of the expiration of the period for redemption, free of all encumbrances and clear of any and all claims of said defendants to said action except the lien for taxes which may have attached subsequent to the sale and the lien of any special or local improvement assessments levied against the property payable after the execution of said deed. ***"

The question for decision is, "Were the liens based upon special assessments preserved by the terms of section 9 of chapter 100?

Admitting that the clause "and the lien of any special or local improvement assessments levied against the property payable after the execution of said deed" was inserted in section 9 for the express purpose of obviating the effect of section 2215 as interpreted in the Jeffries Case, there can be no doubt that chapter 100, including section 9, operates prospectively and not retroactively. "No law contained in any of the codes or other statutes of Montana is retroactive unless expressly so declared." Section 3, Rev. Codes 1921; State ex rel. Mills v. Dixon (Educational Bonds Case), 68 Mont. 526, 219 P. 637.

The sale of property for taxes is a device to compel the owner to pay his share of the burden of government. If he does not pay within the time allowed, his property will be sold subject to redemption, but with added burdens consisting of penalties, interest, and costs. The policy of the state is to collect the taxes, not to divest the owner of the property to which the lien for taxes attaches. The individual bidder may purchase at tax sale for one of two reasons; he may desire to receive back the money he invests plus a high rate of interest in case the owner redeems the property, or he may desire primarily to acquire the property in case redemption is not made. In either case, upon filing the duplicate certificate of sale with the county clerk (section 2197, Rev. Codes 1921), he acquires the lien of the state upon the property which cannot be divested except by payment to him, or to the county treasurer for his use, of the money he has paid with interest; if redemption is not made within the time limited (section 2201), he may, upon compliance with the statute, receive a deed for the property. See section 2209, as amended by chapter 156, Laws of 1929; and also chapter 100, supra.

When the property involved in this proceeding was sold, section 2191 provided that in case there be no purchaser in good faith for the property on the first day it is offered for sale, "then when the property is offered thereafter for sale and there is no purchaser in good faith for...