This is a suit to quiet title, commenced by respondent against Canyon County, Idaho, its treasurer and recorder, City of Nampa, its treasurer, Nampa Meridian Irrigation District, its directors and treasurer and others. From a decree quieting respondent's title the city and irrigation district and their said officials have appealed.
It is alleged in the amended complaint that appellant is the owner of two tracts of land in Nampa, Canyon County, hereinafter referred to as blocks 13 and 16; that the city council enacted an ordinance, which was approved October 20, 1919, creating local sewerage improvement district No. 22, wherein said blocks were included; that the ordinance provided for the levy of assessments to raise money to pay for improvements therein mentioned, which assessments were confirmed by an ordinance, enacted and approved December 6, 1920, providing for payment of the amounts assessed against the lands in the district in installments; that the council also enacted an ordinance, approved May 4, 1920, whereby it created local sewerage improvement district No. 26 wherein said blocks were included; that assessments were made pursuant to the provisions of said ordinance on the lands embraced within that district and, October 1, 1920, an ordinance was enacted and approved, confirming the assessment roll, whereby such assessments became a charge on the land, payable in installments; that to and including 1926 the annual installments for district No. 22 and district No. 26 were certified to the treasurer of Canyon County for collection and the records show the following to be unpaid: block 16, district No. 22, for 1926 — $49.32; district No. 26, for 1926 — $126.00; block 13, district No. 22, for 1924 — $54.48, for 1925 — $51.96, for 1926 — $49.32; district No. 26, for 1924 — $138.96, for 1925 — $132.48, for 1926 — $126.00; that subsequent to 1926 installments of assessments have been carried on the rolls of the treasurer of Nampa, which rolls show the following amounts were assessed against each of the blocks: district No. 22, for 1927 — $46.92, for 1928 — $44.40, for 1929 — $41.88, for 1930 — $38.76; district No. 26, for 1927 — $119.52, for 1928 — $112.92, for 1929 — $106.44, for *Page 746 1930 — $99.24; together with interest and penalties on said assessments and costs of issuing certificates of delinquency, and that the assessments became liens on the property prior to the date of acquisition thereof by respondent. It is also alleged that block 16 was deeded to Canyon County January 5, 1931, for taxes levied against it for 1926 and block 13 was deeded to it January 4, 1930, for taxes levied against it for 1925; that March 27, 1935, the county sold and deeded block 16 to appellant and February 28, 1934, it sold and deeded block 13 to him. The city levied, or attempted to levy, sprinkling taxes against the tracts in question but it is conceded these taxes were not liens thereon, because of defects in procedure.
It is further alleged in the amended complaint that Nampa Meridian Irrigation District claims an interest in blocks 13 and 16 by reason of deeds issued to it for irrigation district assessments levied by it, prior to the date of acquisition of title by respondent from Canyon County.
The city and its treasurer demurred to the amended complaint. The demurrer was overruled and they refused to further plead. The irrigation district, its directors and treasurer, answered and cross-complained, and a demurrer to the cross-complaint was sustained.
The case was, by respondent and the district and its said officials, submitted to the court on stipulated facts from which it appears that blocks 13 and 16 are within the boundaries of the district; that since prior to 1920, the district has been the owner of the Ridenbaugh Canal System, and the right to the water diverted thereby, and of a water right purchased from the Boise Project of the United States Reclamation Service with an interest in said project works sufficient for the carriage of the water represented by the right, to lands within the district to which it has been apportioned for the irrigation thereof; that prior to 1920 the district apportioned 1.125 miner's inches of water from its Ridenbaugh Canal water right and 1.352 acre feet of water from its Boise Project water right to block 13 and duly assessed costs thereof to said tract, on the assessment of benefits of the district, amounting to $37.94 for the Ridenbaugh right, and $119.65 for the Boise Project right; that prior to *Page 747 1928 it had collected $11.28 on account of the benefits assessed for the Ridenbaugh right, leaving a balance unpaid of $26.66, and had collected $32.28 on account of Boise Project right, leaving a balance unpaid of $81.25; that the unpaid balances of said assessments are evidenced by outstanding bonds of the district issued on account of the Ridenbaugh water right and by a contract entered into between the district and the United States for the purchase of the right to water from Boise Project; that prior to 1920 the district apportioned water rights from Boise Project to block 16, and assessed the cost thereof, to wit, $210.00, against the lots therein; that prior to 1928 it had collected $71.40 thereof, leaving a balance unpaid of $138.60; that the unpaid portion of that assessment is evidenced by the contract entered into between the district and the United States for the purchase of the right to water from Boise Project; that in 1926, and every year thereafter, to and including 1935, the district has assessed blocks 13 and 16 on account of construction charges, being the balance unpaid on the purchase price of said water rights, and on account of operation and maintenance charges incurred in distributing the water to the land, and in maintaining the canal system; that the assessment against block 16, for 1926, was not paid and, July 23, 1930, a deed was issued to the district for said tract; that the assessment for 1928 against block 13 was not paid and a deed therefor was issued to the district June 1, 1932; that the following assessments have been levied by the district against block 16: 1926 — $72.30, 1927 — $76.10, 1928 — $71.80, 1929 — $67.50, 1930 — $63.20, 1931 — $57.40, 1932 — $53.20, 1933 — $31.80 and 1934 — $20.10; that it has levied the following assessments against block 13: 1928 — $67.80, 1929 — $61.15, 1930 — $57.35, 1931 — $50.15, 1932 — $46.45, 1933 — $33.55 and 1934 — $19.65; that in addition to these assessments is interest accumulated thereon and that no part of said indebtedness has been paid, nor has any tender to the district been made thereof; also that the execution of the deeds to the district, and all proceedings leading thereto, were in accordance with the laws of Idaho relating to the execution of deeds to irrigation districts.
It was further stipulated that state and county taxes were levied against block 16 for 1926, and for subsequent years, *Page 748 which were not paid, and that January 5, 1931 it was deeded to Canyon County for taxes for 1926; that state and county taxes levied against block 13 for 1925, and subsequent years, were not paid and that January 4, 1930, it was deeded to Canyon County for taxes levied against it for 1925; that the proceedings levying taxes against said tracts, and all subsequent proceedings leading to the execution of the deeds, were in conformity to the laws of Idaho relating to levying taxes and conveying to the county property whereon they are not paid. It further appears from the stipulation that, pursuant to the statutes of Idaho relating to the sale of real property acquired by a county for taxes, Canyon County, March 27, 1935, sold and conveyed block 16 to respondent herein and, February 28, 1934, it sold and conveyed block 13 to him; that he has not parted with the title he thus acquired and now claims to own the property by reason of said conveyance.
It was decreed that respondent was the owner of the property; that his title thereto be quieted against appellants; that the city treasurer be, and she was, directed to cancel, on the records of her office, all city assessments and certificates of delinquency against it; that the county treasurer be, and she was, directed to cancel, on the rolls of her office, all assessments against the property certified to her by the city; that the treasurer of the irrigation district be, and she was, directed to cancel on the rolls of her office all irrigation district assessments levied against block 16 prior to March 27, 1935, and all such assessments levied against block 13 prior to February 28, 1934, and that the county recorder be, and he was, directed to cancel on the records of his office all such assessments certified by the district, against block 16, prior to March 27, 1935, and against block 13, prior to February 28, 1934.
The question before us is: Did the county's deeds convey the property to respondent free from the assessments levied by the city for the benefit of the sewer districts and those levied by the irrigation district?
The county's titles, which it acquired to block 13, for taxes levied for 1925, by deed executed January 4, 1930, and to block 16, for taxes levied for 1926, by deed executed January *Page 749 5, 1931, were limited by Compiled Statutes, 1919, sec. 3263, enacted in 1917 and amended in 1921 (now I. C. A., sec. 61-1032), which was the law in force when the taxes were levied and when the deeds were executed. It is as follows:
"The deed conveys to the grantee the absolute title to the land described therein, free of all encumbrances except mortgages of record to the holders of which notice has not been sent as provided in section 61-1027 and except any lien for taxes which may have attached subsequently to the assessment."
The meaning of that section is clear. Titles to these tracts did not go to the county freed from the liens of taxes attaching subsequent to the levy of the assessments, for failure to pay which they were deeded to it. (State v. Stuart,41 Idaho 126, 238 P. 305; Larson v. Gilderoy, 45 Idaho 764,267 P. 234.)
The county could convey no greater title than it had. It is said in Larson v. Gilderoy, above cited:
"Washington county acquired these particular lands by reason of the failure of the then owner or owners to pay taxes thereon for 1918. Deeds were issued by the tax collector and delivered to Washington county in January and April, 1922. The lands were regularly assessed for state, county and municipal taxes for the years 1919, 1920 and 1921 while still standing in the names of the same owners. Taxes for these latter years have not been paid. They are outstanding liens, and were such at the time appellants received their deeds from Washington county, and the county conveyed only the title it received."
See, also, Hunt v. City of St. Maries, 44 Idaho 700,260 P. 155, and Bauer v. Cassia County, 47 Idaho 680, 277 P. 1111.
While special improvement district assessments are not taxes in the sense in which that word is usually employed in the constitution and statutes of Idaho, they have been held to be, and are, taxes in the sense in which it is used in C. S., sec. 3263. In Heffner v. Ketchen, 50 Idaho 435, 440, 296 P. 768,770, it is said:
"Drainage district assessments 'do not constitute a tax within the purview of the constitution' (Const., art. 7, sec. *Page 750 5; Elliott v. McCrea, 23 Idaho 524, 529, 130 P. 785, 786), nor are they 'taxes' within the meaning of that term as is usually employed in our Constitution and statutes, although laid under a taxing power, and do not fall within the restraints imposed by the Constitution. However, they are special assessments for local benefits and are taxes in a general sense. (Booth v.Clark, 42 Idaho 284, 290, 244 P. 1099.)
"Under the tax deed to Ada County, dated January 12, 1929, title to the property now owned by the Heffners vested in the county free of all incumbrances, except mortgages of record to the holders of which notice has not been sent as provided in C. S., sec. 3258, except the lien of state, county and municipal taxes (State v. Stuart, 41 Idaho 126, 238 P. 305; Larson v.Gilderoy, 45 Idaho 764, 267 P. 234), and liens for local improvement assessments (Hunt v. St. Maries, 44 Idaho 700,260 P. 155) assessed for the years subsequent to the assessment of taxes and assessments on account of the delinquency of which the property was sold; that is, since the year 1924. (C. S., sec. 3263, as amended by Sess. Laws 1921, chap. 232, p. 521,supra.) It logically follows that liens for school district taxes and drainage district assessments are 'taxes' coming within the exception, and we so hold."
The property involved in the Heffner-Ketchen case was deeded to the county January 12, 1929, for taxes which became delinquent in December, 1924. This court, in that case, held the sale of the property to Heffner's grantor, and the title thereby conveyed, were governed by C. S., sec. 3423, as amended by Sess. Laws 1929, chap. 216, which contained a provision, originally enacted in 1927 and appearing in the session laws of that year in chap. 159, page 213, as follows:
"Any such sale made by the board of county commissioners of property acquired through tax deed shall, subject to the provisions of this section, vest in the purchaser all of the right, title and interest of the county in the property so sold, including all delinquent taxes which have become a lien on the property since the date of the tax sale certificate upon which any tax deed has been issued, . . . ." *Page 751
The court, in that case, held the purchaser from the county took title to the property free from "drainage district assessments attaching since the first Monday in January, 1925, upon entry of delinquency, which had the force and effect of a sale in trust for the county, under C. S., sec. 3241."
That holding is erroneous and, apparently, has led the learned trial judge in this case into error. In 61 C. J. 1293, sec. 1799, the rule is thus stated:
"Questions concerning the validity and effect of a tax sale as a transfer of title, or in so far as such sale affects the rights of the purchaser, are to be determined by the law in force at the time the sale was made, which law, indeed, constitutes a contract between the state and the purchaser, the terms of which cannot be impaired by subsequent legislation. Statutes affecting the title or rights of a tax-sale purchaser are not retroactive. The purchaser's rights, under the tax sale certificate, are to be determined specifically by the law in force at the time the certificate was acquired."
By the laws of Idaho the county becomes the purchaser of real property on which taxes are delinquent and, as stated inHeffner v. Ketchen, supra, entry of delinquency has the force and effect of a sale in trust for it. So the rule above quoted from Corpus Juris and followed in Larson v. Gilderoy, Hunt v.St. Maries and Bauer v. Cassia County, above cited, applies here, with this modification: C. S., sec. 3263, makes the law in force at the date of the assessment of the taxes, failure to pay which resulted in the issuance of the deeds, controlling rather than the law in force at the time the sale was made, or at the time the certificate was issued, which difference is immaterial in this case.
As heretofore pointed out, Canyon County took title limited by C. S., sec. 3263, to the effect that it was subject to "any lien for taxes which may have attached subsequently to the assessment." That lien was not extinguished by the legislative act of 1927, declaring what title should vest in the purchaser, from the county, of property acquired by it for delinquent taxes. To construe the 1927 act otherwise would make it retroactive, so as to empower the county to convey a greater title than it possessed, and would make it violative of the Constitution of Idaho, art. 1, sec. 16, and the *Page 752 Constitution of the United States, art. 1, sec. 10, which prohibit the enactment of laws impairing the obligations of contracts.
The unpaid assessments levied by Nampa Meridian Irrigation District, and by the City of Nampa (other than for sprinkling) which attached since the assessments resulting in the issuance of deeds of conveyance to the county, created valid liens against the property which were not extinguished by the county's deeds to respondent.
Justice Holden concurs in this dissenting opinion.