I agree with the majority opinion that the judgment of the superior court must be reversed, and I also approve of many of the rules of law stated therein.
The precise issue before us is whether the complaint states a cause of action. The nature of the action and a summary of the essential facts of the complaint appear in the majority opinion. The majority of the court has held (a) that under section 5278, Revised Statutes Arizona 1913, it is the duty of the board of supervisors of Pinal county "to levy and cause to be collected a tax . . . sufficient to pay the interest on all bonds issued when such interest shall become due," and that such duty is not exhausted by one levy, but is a continuing one until the interest which becomes due is fully paid; (b) that when the principal of any bond so issued becomes due, if the same is not called for payment by the county treasurer, the interest continues until such time as the bonds are so called; (c) that the unpaid interest coupons do not draw interest after they become due; and (d) that it is only when it reasonably appears that delinquent taxes are not collectible that a new levy must be made to make up the delinquencies. With all four of these rules of law I agree. The only point where I differ from the majority is in regard to whether, where it appears that a tax is delinquent, it is incumbent on plaintiff in an action of this nature to plead (and therefore to prove, if the case goes to trial) that the delinquent tax is not collectible, or whether the fact that the tax has not been collected raises a presumption of law that it is uncollectible, and that its actual collectibility is a matter of defense.
Under the law of Arizona, the real property tax is levied in August of each year and becomes due in two installments, which are delinquent respectively *Page 87 in November and May after the tax is levied. It is the imperative duty of the county treasurer not later than the first day of November after the May installment has become delinquent to offer for sale all the real property on the delinquent list, or so much thereof as is necessary to pay the delinquent taxes. If any person bids on the property so offered, the purchaser must pay the amount of his bid in cash, the state has received the full amounts of the tax levied, and is no longer interested in the question, leaving it for the purchaser at the tax sale to settle further issues with the owner of the property so sold in accordance with the law. If on the other hand no bid sufficient to pay the tax is made, the property must be struck off to the state of Arizona, and the taxes assessed against such property are declared not to be payable until the state sells the property or until it is redeemed in the same manner as provided when it is sold to private parties. It will thus be seen that if the county treasurer does his duty, all taxes will be paid in full within approximately eighteen months after the levy is made, or the property will be struck off to the state because no one is willing to bid the amount of the taxes therefor, which certainly would raise a reasonable presumption that such taxes are uncollectible.
If the taxes are uncollected a year after the November in the year in which they are levied, there can be but one of three, and only three, possible reasons therefor: (a) That the treasurer has done his duty and offered the property for sale and was unable to get a bid for the amount of the tax; (b) that the public officers charged with the collection of the tax have been prevented from doing their duty by an injunction arising out of some litigation in regard to the validity of the tax; and (c) that those officers have failed and neglected to perform their duty in *Page 88 regard to the collection of taxes. When, therefore, plaintiff alleged in its complaint that the taxes levied to meet the interest payment due up to May 1, 1933, had not been collected, it was in effect an allegation that one of the three reasons above set forth for the noncollection existed. Was it necessary, then, for it to allege which was the true reason? If this were an action on a bond given by the ordinary defendant to the plaintiff, it would unquestionably be held that as a matter of pleading, when plaintiff had shown the promise to pay, the duty to pay, and the failure to pay, he had made a prima facie case and it was incumbent upon the defendant to show a legitimate excuse for nonpayment. Such a rule of pleading is not only age-old but is founded upon sound considerations of justice. Not only is it the duty of a man who fails to keep his solemn obligation to give an excuse therefor, but it is peculiarly within his knowledge as to whether a legal excuse exists or not, and merely because the plaintiff in this case happens to be the holder of a bond given by a municipal corporation, cannot in reason and in justice change the rule. Pinal county promised to pay the interest on its obligation at certain times, and to both levy and collect a tax sufficient for this payment. Plaintiff has alleged it has failed to keep its solemn promise. If there be a legitimate excuse therefor, it would certainly seem by analogy and on the plainest principles of justice and common sense that it is for defendants, who are in a far better position than plaintiff, to know the true reasons for such failure, at least to plead them.
It seems to me that the majority opinion has confused the question of what defenses are available to defendants, which is a matter of substantive law, with the question of whether they must set them forth in their answer, which is a rule of pleading. *Page 89 It may well be that there are available to defendants in a case like this some defenses which would not be available to a private individual, but I can see no reason why the same rule of pleading should not be applicable to the one as to the other. The rule of pleading which I believe the law could never work an injustice to defendants or to a taxpayer of Pinal county, for if as a matter of fact there is reasonable ground to believe that the delinquent tax may eventually be collected, the defendants are certainly in the best position to know and state it, while if on the other hand it is uncollectible or it is the failure of the defendants and the officers of Pinal county to do their duty which has caused the delinquency, they should be compelled to act as soon as that fact appears, and not to in effect evade a just debt by compelling the plaintiff to anticipate all defense which the defendants might and should have interposed, and plead and prove a negative thereto.
It seems to me that the rule laid down by the majority is not only contrary to the fundamental principles of justice and of pleading, but is also one which is calculated in the long run to do serious harm to the state of Arizona. Our credit for our state and municipal bonds has always been high. This is due to the fact that, until recently at least, we have always kept our promises. It is true that of recent years, due to the long period of depression through which our country is passing, that some of our municipalities have not maintained their previous excellent records. This, experience tells us, is bound to react to our disadvantage when in the future we again endeavor to borrow money for public purposes. If our creditors believe that the default was due to circumstances beyond our control, and that our public authorities have always done their best to see that our promises were kept as made, the harm will be *Page 90 only temporary. If, however, they come to believe that our courts are adopting unjust rules of law to assist our municipalities in delaying or avoiding their obligations, the reaction is bound to be severe. The history of our nation shows that those states and municipalities which have in time of stress attempted to evade their just obligations, have in the long run paid dearly for that attempt. As a matter of public policy, if nothing else, I think the public authorities of Arizona, and particularly the courts, should endeavor to be scrupulously careful that our obligations are met, or that if they are not that the charge cannot be fairly placed against us that we are attempting to evade them. I think the case should be reversed on the ground that it does state a cause of action against defendants, not only so far as interest upon bonds due and unpaid is concerned, but also so far as all interest due and unpaid up to and including May 1, 1933, is concerned, with leave to the defendants to answer and show, if they may, any legal excuse for not levying an additional tax to meet the interest payments above referred to.