Hartman v. City of Bozeman

Supplemental Opinion on Petition for Rehearing On petition for rehearing appellant contends that this court's[6] decision is in conflict with an express statute, namely, section 5247, Revised Codes, which was enacted as section 23, Chapter 89, Laws of 1913, and which reads as follows: "Any special assessment made and levied to defray the cost and expense of any of the work enumerated in this Act, together with any percentages imposed for delinquency and for cost of collection, shall constitute a lien upon and against the property upon which such assessment is made and levied, from and after the date of the passage of the resolution levying such assessment, which lien can only be extinguished by payment of such assessment with all penalties, costs, and interest."

The objection might be tenable if that were the only statute to be considered. However, all applicable statutes must be taken into consideration.

Section 2215.9, Revised Codes, was enacted as section 9, Chapter 176, Laws of 1933, and provided that any tax deed thereafter issued should convey to the grantee the absolute title to the lands described therein "free of all encumbrances and clear of any and all claims * * * except the lien for taxes which may have attached subsequent to the sale and the lien ofany special or local improvement assessments levied against theproperty payable after the execution of such deed," etc. The 1937 amendment, (Chapter 63, Laws of 1937) is not material here, since it made no change except to add to the exceptions liens for irrigation and drainage assessments.

The district was created on August 13, 1938, and its obligations were thereafter issued. The latter, and the liens for the assessments to pay them, were subject to all existing statutes, including section 2215.9, Revised Codes, as well as section 5247, Revised Codes. Therefore our decision is not in conflict with statute, nor can there be any merit in the contention that the statute, Chapter 176, Laws 1933, impairs the obligation of a contract which was not entered into until 1938.

MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ERICKSON and ANDERSON concur.

Rehearing denied December 15, 1944.