Territory of Arizona v. Delinquent Tax List of Apache County for 1887

• Decision Date: 19 March 1889
• Docket Number: Civil 251
• Parties: THE TERRITORY OF ARIZONA, Plaintiff and Appellee, v. DELINQUENT TAX LIST OF APACHE COUNTY FOR 1887, Defendants and Appellants. Appeal of the Atlantic and Pacific Railroad Company
• Court: Arizona Supreme Court

21 P. 888

3 Ariz. 69

THE TERRITORY OF ARIZONA, Plaintiff and Appellee, v. DELINQUENT TAX LIST OF APACHE COUNTY FOR 1887, Defendants and Appellants. Appeal of the Atlantic and Pacific Railroad Company

Civil No. 251

Supreme Court of Arizona

March 19, 1889

Rehearing Denied 3 Ariz. 69; 21 P. 888 at 89.

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Apache. James H. Wright Judge.

Reversed.

William C. Hazeldine, Solicitor for Appellant. J. A. Williamson, and E. M. Sanford of Counsel.

As appears on the face of the complaint, it was filed at "the special April term, 1888." The judgment and proceedings and all the acts sought to be reviewed by this appeal were also had at a special term.

The notice of the time and place of sale of property mentioned in the delinquent list (including that of defendant) fixes the date of application to District Court, for a judgment against the same, upon the third Monday in April, 1888, and announces that the sale of said property will take place on the Monday succeeding said third Monday in April, 1888.

The regular term of the district court, as fixed by law, to be held in the county of Apache, commences on the first Monday of July of each year. Rev. Stats. Arizona, p. 162, par. 626.

From this it appears that only one term of court is provided for by law to be held in the county of Apache each year, and that the term at which the judgment complained of was attempted to be rendered, commenced on the third Monday in April, 1888 the same being the sixteenth day of April.

For provisions as to holding special terms of court, see Rev Stats. Arizona, p. 162, par. 628.

For provisions as to requirements of the delinquent list and when it must be published, see Rev. Stats. Arizona, p. 479, par. 2685.

A judgment, to be in accordance with the statute, must be rendered at a term fixed by law, and the collector's notice appended to the delinquent list must distinctly state the fact that he will apply for judgment at the next ensuing term after the publication of such delinquent list and for an order to sell the property therein specified on the Monday next succeeding the day fixed by law for the commencement of such term; that is to say, the law specifically declares that special jurisdiction is given to district courts to pass upon the sale of delinquent property for taxes at terms fixed by law. The question to be passed upon herein is, is a special term of court a term fixed by law? If this proposition be answered in the negative, the entire proceedings sought to be had in this case fall to the ground.

The statute providing for the sale of property for taxes being in derogation of the common law, and in effect providing for the confiscation of property for the non-payment of taxes, must be strictly construed, and every act and thing required to be done, must be done at the time and in the manner prescribed and in strict accordance with the provisions of the act.

The supreme court of the United States has established the rule, which is imperative so far as the territories are concerned, in the opinion delivered by Mr. Chief Justice Marshall in the case of Thatcher v. Powell, as follows: "In summary proceedings where a court exercises extraordinary power under a special statute prescribing its course, we think that course ought to be exactly observed, and those facts especially which give jurisdiction, ought to appear in order to show that its proceedings are coram judice." Thatcher v. Powell, 6 Wheat. 119.

The jurisdiction of the district court to take cognizance of these tax cases is dependent entirely upon the publication of the advertisement heretofore mentioned. Rev. Stats. Arizona, 1887, supra.

As illustrating the strict and technical compliance with the statute required in tax sales, attention is called to the rule in Missouri, where the law requires the sale to be made before the courthouse door of the county. In several instances the sales were made inside the courthouse, and were held void. The court says: "The law has prescribed the place of sale, and that is the only proper place, and it is so because the law has said so, and there can be no reasoning about it." Rubey v. Huntsman, 32 Mo. 501.

There is no authority under the common law for a court to order the sale of property for taxes due thereon. This is a special proceeding deriving its validity and authority from statutory law. The jurisdiction conferred is special and limited. It must appear from the recitals of the record itself that the facts existed which authorized the court to act. In this instance the record shows these acts were done at a special term, and the law prescribes that the proceedings must be had at a term fixed by law. Cooley on Taxation, p. 358; Thatcher v. Powell, 6 Wheat. 119; Dakin v. Hudson, 6 Cow. 221; Deming v. Corwin, 11 Wend. 647; Selden v. Wright, 5 N.Y. 497; Bridge v. Ford, 4 Mass. 641; Platt v. Stewart, 10 Mich. 260.

This brings us to the question as to the meaning of the phrases used in the act, "at the next ensuing term" and "the Monday next succeeding the day fixed by law for the commencement of such term," and as to whether or not they could be construed as embracing special terms, or terms called by and at the pleasure of the judge, and not held upon dates fixed and determined by legislative enactment.

Terms of court are defined to be those times or seasons of the year which are set apart for the dispatch of business in the superior court of common law. Tidd's Practice, 105. As is said by the supreme court of Pennsylvania, "Civilization and its attendant, commerce, has in more modern times extended the administration of the law by the courts of justice much beyond the limits of merely leisure periods; but still terms, definite and fixed, are prescribed and are absolutely necessary to the successful administration of the judicial duties, so far as the public is concerned; and hence they are with us, fixed by positive law. . . . On this point (speaking of the question raised as to the jurisdiction at an adjourned term) the act of the 5th of April is very explicit. It provides that the terms of the court shall commence on the first Mondays in March, June, September, and December, and continue for four weeks at each term. This is the term fixed by and known to the law, and it cannot be supposed that the obligors understood that any different or other time was meant." Horton v. Miller, 38 Pa. St. 270; Butcher v. Brand, 6 Iowa, 235; State v. Posey, 17 La. Ann. 252.

"When the statute speaks of 'terms,' the terms constituted by law are meant, not special terms appointed by the court. Commonwealth v. Sessions of Norfolk, 5 Mass. 435; Smith v. Cutler, 10 Wend. 590, 25 Am. Dec. 580." Tompkins v. Clackamas Co., 11 Or. 364, 4 P. 1210. See, also, Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54; Garlick v. Dunn, 42 Ala. 404; Brown v. Hogel, 30 Ill. 119; Marsh v. Chestnut, 14 Ill. 224; Spellman v. Curtenius, 12 Ill. 409.

The rule established by the supreme court of the United States for the government of this and other courts directly subordinate to it as to the construction to be placed upon statutes providing for the sale of property for the nonpayment of taxes, is as follows: "In an ex parte proceeding, as a sale of land for taxes under a special authority, great strictness is required. To divest an individual of his property against his consent, every substantial requisite of the law must be shown to have been complied with. No presumption can be raised in behalf of a collector who sells real estate for taxes to cover any radical defect in his proceeding." Ronkendorf v. Taylor's Lessee, 4 Pet. 349.

A term called by a judge or a special term is not in any sense of the word a term fixed by law, or such a term designated by the legislature as that at which proceedings should be had for the purpose of enforcing the collection of delinquent taxes.

Even if it were possible to place such a construction upon the language "a term fixed by law" as to embrace a special term called by the judge, this special term at which the judgment in this case was attempted to be rendered was coram non judice, because the record does not show, neither does it appear affirmatively in any manner, that this special term was called in manner and form as required by law.

The section authorizing special terms provides that the same may be held upon notice for that purpose to be published in a newspaper, such notice to be given by the clerk upon the order of the judge. Rev. Stats., sec. 628, supra.

This being a special term, the power to convene and the authority under which the same was opened must appear affirmatively of record, as no presumptions are indulged in favor of a special term, thus reversing the usual rule as to courts of general jurisdiction. Clelland v. People, 4 Colo. 244; Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54.

John A. Rush, Attorney-General, and Harris Baldwin and T. W. Johnston, special counsel, for Appellee.

"It is unnecessary that the order calling a special term of the circuit court should be set out in the record. Unless the contrary expressly appears, the presumption is in favor of the regularity of the term." Teerner v. People, 81 Ill. 412.

"Where a proceeding appears to have been at a special or general term, the presumption of law is in favor of the regularity of said term and of the jurisdiction of the court. This presumption may be rebutted, it is true, by showing affirmatively that there was no order of the judge or court appointing the special term, or where the court can see from the public law that the judge was required to be in another place, holding another court." Cook v. Renick, 19 Ill. 600.

"It is contended that if the court...