Union Central Life Ins. Co. v. State

• Citation: 226 Ala. 420,147 So. 187
• Decision Date: 12 January 1933
• Docket Number: 6 Div. 170.
• Parties: UNION CENTRAL LIFE INS. CO. v. STATE ex rel. WHETSTONE, Tax Assessor.
• Court: Supreme Court of Alabama

147 So. 187

226 Ala. 420

UNION CENTRAL LIFE INS. CO. v. STATE ex rel. WHETSTONE, Tax Assessor.

6 Div. 170.

Supreme Court of Alabama

January 12, 1933

Rehearing Denied April 13, 1933.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Proceeding by the State of Alabama, on the relation of L. A. Whetstone as Tax Assessor of Jefferson County, to assess property of the Union Central Life Insurance Company for taxation. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Coleman Spain, Stewart & Davies, of Birmingham, for appellant.

Thos E. Knight, Jr., Atty. Gen., Frontis H. Moore, Asst. Atty. Gen., and Jelks H. Cabaniss, Matt H. Murphy, W. J. Wynn, and T. A. McFarland, all of Birmingham, for appellee.

THOMAS Justice.

This appeal presents for review the interest of a mortgagee in seeking to redeem from tax sale, and the right of assessment of the land as an escape. The essential facts for an understanding of the case may be stated in short as follows:

On May 23, 1929, the property was sold for state and county taxes due for the year 1928; was bought in by the state for $149.20; reported by the judge of probate to the state auditor and by him on August 1, 1929, forwarded to the tax assessor on a descriptive list of lands so reported to him as bid in for the tax year 1928, and as required to be so reported by the act of 1919 (Gen. Acts 1919, p. 360, § 269). The tax assessor compared this list and noted thereon his "fair valuation" on this property, and returned the list to the auditor, and also a copy thereof to the judge of probate. The judge of probate nor the auditor did not make further entries on that descriptive list or their books, as the taxes accruing thereon at such "fair valuation" made and noted by the tax assessor.

A day or so before the expiration of the two years for redemption, on May 22, 1931, the auditor sold and transferred the tax certificate of purchase by the state to one Clapp, for the sum of $173.07, and of this action and consideration thereof the defendant-appellant had actual notice-that is, of the transfer of the certificate for the amount of purchase and interest, aggregating $173.07.

It is admitted that the auditor failed on such sale and transfer, to collect from that assignee, Clapp, the full amount of taxes due on the property for the subsequent years, viz. for 1929, 1930, and 1931, which had not been paid by the assignee or any other person to the state. The agreed statement of facts shows that appellant paid, on June 8, 1931, to such assignee, a week or so after the expiration of two years from the sale, a sum equal to said taxes, or $638.29, on purchasing from the latter her tax purchase certificate which she had acquired from the state for $173.07; that this purchaser and transferee had no official connection with the state, and was in her own behalf in collecting such excess sum to that bid by the probate judge for the state at tax sale.

The instant proceeding was instituted by the tax assessor of the county where the land is situated and under the act of 1923 (Gen. Acts 1923, pp. 152, 175, § 39), and as the discovery by that official of such property as escaped taxation for the years 1929, 1930, and 1931.

It is apparent that the questions presented are:

(1) Can the auditor assign such certificate of purchase by the state, as provided by section 260 of the act of 1919 (Gen. Acts 1919, p. 358), without requiring payment of accruing taxes to the date of purchase and for that tax year, as provided by section 269 of the same act?

(2) The auditor, failing to obey the provisions of section 269, by adding the subsequent taxes on the certificate or collecting such taxes from the purchaser of the tax certificate, and transferring that certificate upon payment of only the amount of the initial taxes and interest named in the certificate (one year's taxes for 1928), must the tax assessor, on discovering that fact, assess that property for the intervening years as an escape of the property from taxation under the provisions of section 39 of the act of 1923 (Gen. Acts 1923, pp. 152, 175)?

It will be noted that the provision of the statute (sections 3120-3123, Code) to the effect that, when the sale is made by the auditor and after the expiration of two years from such sale, no person entitled thereto had redeemed, etc., will not be considered here, as the sale of the tax certificate was before the expiration of two years from the tax sale.

The statutes presenting a comprehensive system for affording the public revenue are contained in the Code and in the revenue statutes not so included. Code, § 12; Acts 1919, p. 1066, § 14; Board of School Com'rs of Mobile County v. American Surety Co. of N. Y., 220 Ala. 458, 125 So. 906; State v. Acacia Mut. Life Ass'n, 214 Ala. 628, 108 So. 756; City of Montgomery v. American Ry. Express Co., 219 Ala. 476, 122 So. 639. The governmental policy as to such matters is to be found in these legislative acts on the same subject and construed together in pari materia as a part of one system. State v. Stonewall Insurance Co., 89 Ala. 335, 7 So. 753; Brown, Ins. Commissioner, v. Protective Life Ins. Co., 188 Ala. 166, 171, 66 So. 47; Ex parte State (State v. Lovejoy), 188 Ala. 401, 66 So. 1. If there is a conflict the last expression of the legislative will must control. Brandon, State Auditor, v. Williams, Judge, 157 Ala. 386, 47 So. 199. Hence the provisions as sections 3107-3111 and sections 3120-3123 of the Code will be considered in pari materia with sections 260, 269, and 300-303 of the acts of 1919 (pp. 358, 360, 370, 371) to maintain a harmonious system for taxation, redemption of lands from tax sale, sale of certificate of purchase at tax sale, and sale after two years from tax sale of unredeemed lands purchased by the state at tax sale. In this wise only can the expressed public policy and will of the Legislature be obtained under the construction placed by this court on pertinent provisions of such statutes.

It is sufficient to observe, that the instant property was assessed for taxation for the years 1927-28; was delinquent January 1, 1929; was sold for taxes May 23, 1929, and the purchaser's certificate thereof to and by the state was delivered by the probate judge to the tax collector, who, in turn, duly delivered the same to the state auditor as required by law. It is further shown by the agreed statement of facts that the state auditor, though receiving the valuation of these lands from the tax assessor as provided by statute (section 278, Revenue Compilation of 1929; Gen. Acts 1919, § 269, pages 360, 361), did not in all respects comply with the statute relating thereto, as we shall now indicate.

Among other things, that statute (section 269, Gen. Acts 1919, pp. 360, 361) provides: "The county tax assessor shall put a fair valuation on the remainder of the lands contained in such descriptive list; and shall enter such valuation and shall calculate the taxes upon such descriptive list and return the same to the State auditor, who shall thereupon, and annually thereafter until such land is redeemed or recovered, or sold by the State, without further assessments, add the amount of the taxes so assessed on such valuation to the amount for which the lands were sold, and such proceedings shall have the effect of a due assessment of taxes against said lands. The assessor shall furnish to the judge of probate a copy of the list returned to the State auditor, and it shall be the duty of the judge of probate to enter the taxes therein calculated on the record of sale thereof kept in his office."

The provisions of section 260, Gen. Acts 1919, p. 358, under which the auditor purported to act, are: "The certificate of purchase delivered by the tax collector to the purchaser at such sale, or to the State, in case the State is the purchaser, is assignable in writing or by endorsement, and if the State is the purchaser such assignment shall be made by the State auditor upon the payment of the amount bid by the State, with interest thereon at the rate of eight percent per annum, and the assignment thereof vests in the assignee and his legal representatives all the right and title of the original purchaser or of the State, in case the State is the purchaser."

The Act of August 22, 1923 (Gen. Acts 1923, p. 152), was to further provide for the general revenues of the state, and in no wise affected the terms of the act of 1919 in respects here pertinent, as to its sections 260 and 269.

It is conceded that sections forming a part of the same act, or class of enactment, so related in time and substance, are pari materia, and considered together in the ascertainment of the legislative will, and that each is given a field of operation, if it can be consistently done within the rules of construction that obtain to such subject-matter. Fidelity & Deposit Co. of Maryland v. Farmers' Hardware Co., 223 Ala. 477, 136 So. 824; Crow, Tax Collector, v. General Cable Corporation, 223 Ala. 611, 613, 137 So. 657, and authorities; City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159; Tucker v. McLendon, 210 Ala. 562, 98 So. 797; State ex rel. Scholl v. Duncan, 162 Ala. 196, 50 So. 265; State ex rel. Tyson v. Houghton, 142 Ala. 90, 38 So. 761; 11 Mich. Digest, Alabama Reports, 1102, 1103, 1114.

Be it remembered, as observed, that the sale of the State's tax certificate was before, and not after, the expiration of the two years for redemption, and not under the provisions of sections 301, 302, and 303 of the Gen. Acts of 1919, page 371, and the construction thereof of a kindred statute in Crebs v. Fowler, 148 Ala. 366, 42 So 553. In that case, however, it was held that such assignee did not take title or the state's...