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

• Decision Date: 19 March 1889
• Docket Number: Civil 251
• Citation: 21 P. 888,3 Ariz. 69
• 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

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

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

Original Opinion of March 19, 1889, Reported at: 3 Ariz. 69; 21 P. 888.

Barnes, J. Porter, J., concurs.

OPINION ON REHEARING.

BARNES, J.

The petition for a rehearing in this case must be denied. The questions presented thereby were fully argued by counsel and considered by the court in the former hearing. It evidently seeks to discuss with the court rather the reasons for the conclusion than the decision itself. The purpose of a rehearing is not to give an opportunity to reopen the whole case for a new discussion. It is simply an opportunity, out of abundant caution, for the court to correct any misapprehension of the record, or any oversight or omission that may have been inadvertently made. Copper Co. v. Copper Co., 2 Ariz. 169, 11 P. 396; Sauls v. Freeman, 24 Fla. 225, 4 So. 577; Hannan v. Grizzard, 99 N.C. 161, 6 S.E. 93; Elliott v. Cale, 113 Ind. 383, 14 N.E. 708, 16 N.E. 390; Shreveport v. Holmes, 125 U.S. 694, 8 S.Ct. 1389. However, after a careful consideration of the case, we must adhere to our decision rendered. Our attention is called to the view expressed that the record must show that the special term was called according to law, and it is urged that, as the proceedings of courts of general jurisdiction are presumed to be regular, we must presume that this proceeding was so. There seems to be a misapprehension as to just what is meant here. When a court of general jurisdiction enters an order or judgment, it is a record against which there may be "neither averment nor proof." It is verity. What is recited as having been done is presumed to be done, and upon competent evidence. But this presumption will not put into the record what is not there,--will not make an order, where there is none. The convening order of any term of court is a part of the record in such case, considered during that term. It is the beginning, the basis, the authentication, of all that follows. It recites that the court met according to law on the day named, and that there were present the judge, the clerk, the marshal, the sheriff, etc.; and then the record recites that on a day named, said day being one of the days of said term in a certain cause named, the following proceedings were had and entered of record. If it be a special term, the convening order would say, in substance, that on a day named the court met pursuant to an order of the judge, and after due notice, according to law, etc. Such a record imparts verity, and it will be presumed that the requirements of the statutes as to the order and notice have been complied with. This is what we mean when we say that the record must somewhere show that the special term met according to law, and upon due notice. In this record there is no convening order. Nothing to show, by way of recital in the record, whether the proceedings were in regular or special term. If in special term, whether it was duly entered and upon due notice. Nothing to show that the court was in session at all. Presumptions will not supply this; where it appears that proceedings of a court were had it will be presumed that they are regular. Lawrence v. Fast, 20 Ill. 338; Dukes v. Rowley, 24 Ill. 210. These are maxims so old and well-established as to have hardly been questioned.

Again it is urged that the collection of taxes is not a "special proceeding." It is idle to stumble over words. It is a proceeding in rem. It is the creature of statute. Service is made in a manner provided for by law, and no personal service is required. Each step in the cause is pointed out. What evidence is required, also. It is summary in its form and mode of procedure. In this sense it is special, and must conform to law. The statute says that the judgment for taxes shall be rendered at the next term "fixed by law" after notice, etc. The law fixes the time of a term of court in Apache County on the first Monday of July. This is the only term fixed by law. It is a term whose time of session is fixed by the statute itself, and of which every person is charged with notice. Where a special term of court...