Tyler v. Cass Cnty.

• Decision Date: 29 November 1890
• Citation: 1 N.D. 369,48 N.W. 232
• Parties: Tyler v. Cass County.
• Court: North Dakota Supreme Court

1 N.D. 369

48 N.W. 232

Tyler

v.Cass County.

Supreme Court of North Dakota.

Nov. 29, 1890.

Publication delayed pending application for rehearing, which was refused.

Syllabus by the Court.

1. The defendant county, through its treasurer, sold certain lands for delinquent taxes at the annual tax-sale in October, 1885. The lands so sold were a part of the original grant by the general government to the Northern Pacific Railroad Company. The lands were surveyed at the expense of the United States, and earned by said company after the passage of the act of congress of July 15, 1870, pertaining to survey fees; and no part of said survey fees had been repaid to the United States at the time of such sale. Prior to the assessment and levy of said taxes, for which said lands were sold, the railroad company had disposed of the lands, and conveyed them to third parties by deeds and contracts, and such third parties were in possession. Said lands were regularly assessed, and all the proceedings leading up to the tax-sale were regular. Plaintiff bought the lands at such tax-sale, and brings this action to recover the purchase money so paid. Held, that such lands were not taxable at the time of such assessment, because the United States held the fee title to said lands, and had a lien thereon for the survey fees, (Railroad Co. v. Rockne, 115 U. S. 600, 6 Sup. Ct. Rep. 201;) but that, since land was a subject of taxation in Dakota territory, prima facie these lands were taxable. Taxation was the rule; freedom from taxation the exception.

2. Held, further, that the assessor being a judicial officer, where property is exempted from taxation by class, and not by specific description, he has full jurisdiction, and it is his duty to decide in each instance whether or not a particular piece of property falls within any of the exempted classes, and in this respect the source of the law that establishes the exemption is immaterial.

3. Held, further, that an erroneous decision of an assessor in the matter of exemptions does not deprive the tax proceedings of jurisdiction; but, until such erroneous decision is modified or set aside by the proper tribunal, all officers with subsequent functions may safely act thereon.

4. Upon a right of recovery at common law, there is nothing in this case to relieve the plaintiff from the rule of caveat emptor, as announced by this court in the case of Budge v. City of Grand Forks, 47 N. W. Rep. 390, (decided at this term.)

5. Under the law in force when such sale was made, the treasurer, in the matter of the collection of the taxes, was purely a ministerial officer; and when he received the duplicate tax-list, with the warrant of the county commissioners attached, if such process was fair on its face, and contained nothing that would apprise the treasurer of any defects or infirmities, and in a case where it does not appear that the treasurer had any knowledge of any defects or infirmities, such treasurer was fully protected from personal liability in collecting the taxes upon all property contained in his said list, so long as he acted strictly within the statute. The law furnished his authority for selling property for delinquent taxes; the warrant, with the tax-list attached, furnished him the subjects upon which to exercise such authority.

6. The statute, (Comp. Laws, § 1621,) which required the treasurer to “sell all lands liable for taxes of any description for the preceding year or years,” meant all lands liable for taxes, as shown by the process in his hands. He could not refuse to sell lands on his list, nor could he sell lands not on his list.

7. Section 1629, Comp. Laws, then in force, read as follows: “When, by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time, the county is to save the purchaser harmless by paying him the amount of the principal, and interest at the rate of twelve per cent. per annum from the date of sale, and the treasurer and his sureties shall be liable for the amount to the county on his bond, or the purchaser may recover the same directly from the treasurer.” Held, that the sale of the lands in this case was neither the mistake nor the wrongful act of the treasurer, within the meaning of said section, and that plaintiff has no right of action under said section.

8. Section 84, c. 132, of the Laws of North Dakota for 1890 has no application to a sale of lands made before the enactment of said chapter.

Appeal from district court, Cass county; William B. McConnell, Judge.S. B. Bartlett, A. C. Davis, J. A. McEldowney, and Jesse A. Frye, for appellant. Stone & Newman, for respondent.

Bartholomew, J.

This action was commenced by the presentation by plaintiff of a claim to the board of county commissioners of the defendant county, by which plaintiff sought to recover certain money paid by him as the purchase price of tax-sale certificates on certain real estate sold by defendant's treasurer for delinquent taxes at the annual tax-sale on October 6, 1885. The board of county commissioners refused to allow the claim, and plaintiff appealed under the statute to the district court. In that court the case was tried upon an agreed statement of facts without a jury. From this statement it appears that the real estate in question was a part of the original grant by the United States to the Northern Pacific Railroad Company; that said company had, prior to the levy and sale hereinafter mentioned, disposed of said lands to private parties by deeds and contracts, and such parties were in possession; that no patents had issued for said land; that the railroad company earned said lands after the passage of the act of congress of date July 15, 1870, pertaining to survey fees; that said lands were originally surveyed at the expense of the United States government, and after the passage of said act of congress, and no part of the cost and expenses of said survey had, at the time of said tax-sale, been repaid by said railroad company to the United States, as provided by the last-mentioned act of congress; that in 1884, and prior thereto, the taxing officers of the defendant county proceeded to assess said lands and levy taxes thereon, all of which remained unpaid on October 6, 1885, and on said date the treasurer of said county proceeded to sell said lands for said delinquent taxes, and the plaintiff purchased the same, and it was to recover the purchase money so paid that this action was brought.

No question is made as to the regularity of the sale, or the tax proceedings leading thereto. The statement of facts, as was intended, brings the lands clearly within the conditions existing in Railroad Co. v. Rockne, 115 U. S. 600, 6 Sup. Ct. Rep. 201. Under the law as settled by that case, the lands in question were not taxable at the time the taxes were assessed and levied, by reason of the non-payment by the railroad company of the survey fees, for which the general government had a lien upon the lands. The lands not being taxable, of course nothing passed by the sale. Plaintiff claims to recover his purchase money, with 12 per cent. per annum interest, under a statute to be hereinafter considered; or the purchase price, with legal interest, as for money had and received. The liability of a taxing municipality to refund money paid for void tax-sale certificates, in the absence of a regulating statute, has very recently received full consideration by this court, and such liability was denied. See Budge v. City of Grand Forks, 47 N. W. Rep. 390, (decided at this term.) As the briefs of counsel in this case were in the hands of the court, and received careful consideration before the decision was reached in the case against the city of Grand Forks, it will not be necessary for us to say anything upon this point in addition to what we then said, except to note one distinction which is strenuously insisted upon by counsel. In the former case the invalidity of the tax-sale certificates arose from certain irregularities in the proceedings of the taxing officials; in this case the invalidity arose from the entire absence of power in the sovereignty under whose authority this tax-sale was made to impose any tax whatever upon the lands which plaintiff purchased at said sale. In Railroad Co. v. Rockne, supra, it was held that when, after the passage of the act of congress of July 15, 1870, lands within the original grant to said railroad company were surveyed by the general government, the government had a lien upon the lands for the expenses of such survey, and that the fee title could be divested only by payment of such lien. Since the fee title, coupled with an actual interest in the land, remained in the general government, the territory of Dakota was powerless to tax such land. It is true that by territorial statute the property of the United States was expressly exempted from taxation; but said statute was unnecessary, as the organic act of the territory forbade the taxation by the territory of the property of the United States, and the power cannot exist in a state to tax the property of the United States, even in the absence of all special provisions. McCulloch v. Maryland, 4 Wheat. 316;Van Brocklin v. Anderson, 117 U. S. 151, 6 Sup. Ct. Rep. 670;Tucker v. Ferguson, 22 Wall. 527;People v. U. S., 93 Ill. 30. Respondent claims that as to all matters of procedure, the rule of caveat emptor applies to tax-sale purchasers, but that it goes no further; that such purchaser is under no duty to inquire into the facts giving original jurisdiction to impose the tax; and that a taxing municipality should refund, in a case like this, when it has received money to which it had not only no legal right, but to which the territory was powerless to give it a legal right. On the argument this distinction impressed us, but upon full investigation we fail to find any direct support for it, either in authority or reason. The taxing powers of a state...