I dissent. The judgment should be affirmed. There is only one real question involved in this case, and that is a very simple and direct one. It involves the applicability of section 2207, Revised Codes 1921, to the issues of this case. The discussion of the Irrigation District Act and the previous decisions of this court relative thereto have no real application to the issues involved here. They carry us far afield and do not serve any purpose in the instant litigation. The majority opinion disposes of section 2207 on the ground that it has nothing to do with assessments, but overlooks the fact that section 2208, a part of the same Act (Chap. 151, Laws of 1917), provides that the Act shall apply to any sales *Page 408 of land for which a treasurer's deed shall not, at the time of the passage of the Act, have been actually issued. Thus it indicates that the Act is a general one and was intended to apply to all cases where sales are made by the treasurer for tax purposes.
In view of the discussion in the majority opinion, it is interesting to note that the bonds of the irrigation district were issued in 1920, under the irrigation laws of Montana, and were subject to all other existing applicable laws of the state in force at the time. Sections 2207 and 2208, Revised Codes of 1921, were enacted in 1917, and therefore were in effect at the time of the issuance of the bonds. The terms and provisions of these sections were just as much a part of the contract as were any other sections of the Code.
It is important to consider the reasons for the enactment of sections 2207 and 2208. Previous to 1917 there were only two possibilities available to a county whereby it could actually get possession of money due for delinquent real estate taxes after sale of the property to the county; (a) Redemption of the property and (b) taking tax deed and thereafter making a sale. The first plan depended entirely upon the will of the land owner. He might or might not redeem. It was his option, and the county had no choice in the matter. The second plan involved, not only a waiting period of at least three years, the period of redemption but also the details of advertising, posting, and execution of a tax deed. Under the latter alternative the county was forced to stand by without its money due for delinquent taxes and usually without revenue from currently accruing taxes.
It is a well known and generally recognized fact that a county does not desire to acquire title to and hold property generally, but only resorts to seizure of the property, the subject of taxation, somewhat in the manner of a levy, for the purpose of collecting the part of the revenue due to the public as a share of the general or special tax burden imposed by law upon the property involved. Under our system it is not now, and never has been, the policy of government for the state or *Page 409 a county to acquire and hold property not utilized for governmental purposes. Since state and county property is not subject to taxation, it is not income bearing. The purpose of taxation is not to acquire property, but to get revenue.
In order to facilitate the collection of taxes, the legislative authority of the state enacted section 2207, and added section 2208 to make the Act applicable immediately and generally. By the terms of these sections the county may get its money from anyone willing to advance the amount. These sections in effect extend in force the policy of tax sales, viz., that the county will not bid at such a sale if there is any other bidder, and only then upon a second offering. This plan actually leaves the sale open until the land is redeemed, or a deed is issued. In case a third party makes the payment of the tax, he becomes in reality the purchaser of the land, subject to redemption, in manner and form as though he had purchased it at the open bidding at the treasurer's sale. The county takes its money and steps out of the picture. In order to effectuate this purpose, a statutory form of assignment is provided for execution by the county treasurer.
The course provided by statute, as above outlined, is the subject of the difficulty here. The majority opinion holds that section 2207 is not applicable here because it mentions taxes only and does not say anything about assessments. Reliance is placed upon a statement in the opinion of this court in theMalott Case, supra. In that case it was said "that irrigation district assessments are not taxes, as that term is used in section 2215." Section 2215, Revised Codes 1921, defines the title that passes under a tax deed. Sections 2207 and 2208, supra, are designed to control, facilitate and promote the speedy collection of tax money. They were not enacted after the issuance of the bonds under consideration here, and therefore cannot under any stretch of the imagination be held to affect or impair contracts already in existence. But, if section 2207 had been enacted after the issuance of the bonds, it would have made no difference, because there is no vested *Page 410 right in a method of collecting taxes. (State ex rel. Souders v. District Court, 92 Mont. 272, 12 P.2d 852.)
In considering another administrative section of the tax laws (Chap. 96, Laws of 1923), this court discussed considerations such as are here involved. The chapter last mentioned provides for semi-annual tax payments in lieu of annual tax payments theretofore required. The city of Missoula, a municipal corporation, took the position that, because the Act referred only to "taxes," improvement district assessments were still payable annually. A taxpayer tendered half of his taxes and half of his improvement district assessments immediately before November 30. The city treasurer refused to accept the partial payment so tendered under the provisions of the Act, and demanded the full amount of the taxes and assessments chargeable for the year, threatening to proceed against the taxpayer as a delinquent. Suit was instituted to prevent the city treasurer "from proceeding to carry his threat into execution." The issue in the case, Thomas v. City of Missoula, 70 Mont. 478,226 P. 213, 214, directly involved the question: Are improvement district assessments included in the Act under the designation "taxes"? This court disposed of the main contention in the following language: "It is contended further that assessments made for special improvements are not taxes and are not comprehended by the provisions of Chapter 96 above. That money exacted from a property owner to defray the expense of a special improvement is a species of taxation imposed and collected under the taxing power cannot be questioned. (Billings Sugar Co. v.Fish, 40 Mont. 256, 20 Ann. Cas. 264, 26 L.R.A. (n. s) 973, 106 P. 565.) In defining the word `tax' the Century Dictionary says: `In a more general sense the word includes assessments on specific properties benefited by a local improvement for the purpose of paying expenses of that improvement.' For certain purposes the authorities quite uniformly recognize a distinction between ordinary taxes and exactions for special improvements, as, for instance, when the question of exemption or uniformity is raised. But whether the term `tax' *Page 411 when used in a statute, as in Chapter 96, includes an imposition for special improvements, must be determined by reference to the intention of the legislature, as that intention may be disclosed by the context, the purpose sought to be accomplished, the general scope of the Act and related Acts. (Wisconsin RealEstate Co. v. Milwaukee, 151 Wis. 198, 138 N.W. 642.) Neither the context nor general scope of the Act (Chap. 96) furnishes a key to the solution of our question; but it is worthy of note that prior to the enactment of Chapter 96 all taxes were collected annually in one payment (secs. 2169 and 5203, Rev. Codes), and the rule applied specifically to special improvement taxes (sec. 5251). The manifest purpose of Chapter 96 was to relieve the taxpayer of the burden thus imposed so far as relief might be had by a division of the amount and payment in equal semi-annual installments. It is also to be observed that throughout the special improvement statute (secs. 5225-5277, Rev. Codes) these exactions for special improvements are referred to as taxes (secs. 5240, 5244, 5245, 5247, 5248, 5251, 5253, 5266, 5267 and 5276). In view of this fact and the apparent purpose of the Act, we think the only fair inference is that the legislature intended to include under the term `taxes' special improvement taxes as well as general and ad valorem taxes."
The sections here involved are administrative provisions and should be subject to the construction placed by this court on Chapter 96, supra. The assignment of the certificate was proper and legal.
Vigorous protest is asserted by appellants to the assignment of the certificate, on the ground that it is violative of section 7243, Revised Codes 1921, and other sections of the Irrigation District Act. These sections provide for the preservation of the rights of the irrigation district and its creditors in case of a sale of lands within the district when sold to the county for taxes. The provisions for issuance of debenture certificates and the assignment thereof were designed to operate only so long as the county remains the holder of the certificate before deed, and during the time the county holds the title *Page 412 after deed. These sections insure to the district and its creditors their fair proportionate share of the proceeds of a redemption, or of a sale after deed to the county. In case of an assignment, as here, the district and its creditors — bondholders in this instance — are upon surrender of such debenture entitled to their proper share of the money paid to the county treasurer. It cannot be said that holders of irrigation district bonds are treated differently under the procedure followed in this instance than are mortgagees generally and holders of bonds issued under trust deed contracts. In either instance a redemption must be made to save the property.
A very pertinent discussion on this subject is contained in the opinion in the case of State ex rel. Malott v. Board ofCommrs., 89 Mont. 37, at page 93, 296 P. 1, 18, wherein the court discussed the rights of the state in the matter of loans of school funds, as follows: "But, if a loan is made of the school funds upon farm lands, the lands are still subject to taxation,and the state of Montana is obliged to protect its loan by thepayment of the taxes levied against the land, or suffer the lossof its security through the taking of a tax deed. The bondholders are in the same situation, and may protect their security by either paying the taxes or redeeming the land at any time prior to the expiration of the period for redemption." It is interesting to note that the bondholders mentioned in the quotation are the identical ones involved here. The remedy of the bondholders in this case lies in the fact that they may redeem to save their security.
It is admitted that, if Thelen, respondent, had purchased the lands at the treasurer's tax sale, he would have been entitled to a deed free and clear of all encumbrances, after the expiration of the period of redemption. (Malott Case, supra, 89 Mont. 94,296 P. 1, 18.) To say that, simply because he took the tax certificate by assignment from the county, his rights are different from what they would have been if he had purchased it, is to indulge in unwarranted technicalities. We have attempted to point out that it makes no difference whether he takes the certificate by reason of a bid at the sale, *Page 413 or by virtue of a payment of the taxes after the sale. There can be no justification of such a legal distinction. The whole thing turns on the question of the applicability of the assignment provisions. (Secs. 2207 and 2208.) The purpose of these sections being to enable the county to get its money without waiting for the expiration of the redemption period, and the statutes being administrative in character, the plain and common-sense construction is obvious.
It is important to note that the service rendered to an irrigation district by the county — in other words, by the public — in the matter of the collection of its assessments is performed gratuitously, and that it is only reasonable to believe that it shall be performed in the same manner as such similar service may be performed for the county on it own behalf.
Section 7213, Revised Codes 1921, places the lien of such taxes and assessments on the same plane with taxes levied for state and county purposes, and section 7242 provides that "delinquent sales of land for unpaid taxes or assessments shall be made in the same manner as for state and county taxes, * * * and the right of redemption shall in all cases be made the same as in cases where lands are sold for state or county taxes." Under the terms of section 7240, a part of the Irrigation Act itself, it is provided that the county treasurer of each county shall collect "such taxes or assessments at the same time and in the same manner as county and state taxes." Therefore, if we are correct in our assumption that the assignment of a tax certificate under the provisions of sections 2207 and 2208, supra, constitutes but another step in the collection of the taxes generally, then the certificate under consideration was properly assigned.
It must not be forgotten that this court has declared that an irrigation district created under the laws of the state of Montana is a public corporation organized for the government of a portion of the state, and that it exercises some governmental functions. For example, it may levy taxes, which is the exercise of one of the highest prerogatives of sovereignty. *Page 414 (Chap. 35, Part 4 (sec. 7232 et seq.), Rev. Codes 1921; CrowCreek Irr. Dist. v. Crittenden, 71 Mont. 66, 227 P. 63.)
Section 7235, Revised Codes 1921, provides for the levy of an amount sufficient for the general administrative expenses of the district, including costs of maintenance, repairs and interest on, and for payment of the principal of, the outstanding bonded or other indebtedness of the district. This section contains the following language: "But the tax thus determined," and so forth, thereby denominating the assessments as taxes. The section was amended by Chapter 157, Laws of 1923, and again by Chapter 89, Laws of 1931. It is important to note that the last-mentioned amendment places the obligation of levying the "taxes or assessments" upon the county commissioners of the county in case the levy is not made and certified by the commissioners of the irrigation district. So it must be observed that an irrigation district is just as much a subdivision of the state for certain governmental purposes as are cities, towns and school districts.
If the operation of section 2207 is restricted to cases involving only general taxes, the section will be rendered inoperative by reason of the fact that there is scarcely an assessment on the books of any county that does not contain some item of so-called special assessment. The county treasurer collects all the taxes and assessments. In most instances he collects city, town and school district taxes and all assessments required for the maintenance of special improvement districts and other charges. In fact, the county treasurer collects the taxes and assessments for all the various subdivisions of the state. Some one or more of these special taxes and assessments find a place on nearly every assessment list in the state; so that, if section 2207 is not applicable to a case where special assessments are involved, the section can hardly be invoked for any practical purpose. It was not the intention of the legislature that the section should be given such restricted meaning.
The most serious objection to be urged against the restriction of section 2207, as applied to the majority opinion, is *Page 415 found in the fact that the very purpose and intent of the section will be defeated. As here construed and applied, the section will not yield any immediate revenue. It will not aid the county in the collection of taxes. In fact, it will merely remain in the Code without serving any useful purpose.
The decision in this case extends to the bondholders of an irrigation district rights and privileges not enjoyed by other property owners. It is absurd to say that a county treasurer may assign a tax certificate in a case where there are included city taxes and special improvement district taxes, but that he is forbidden to assign a certificate wherein there are involved irrigation district taxes and assessments. This is an unwarranted, unreasonable and unfair distinction. The recognition of the distinction not only operates unfairly and unjustly upon taxpayers, but hampers and restricts the county in the collection of taxes for its own use and for the use and benefit of all subdivisions within the state which may be interested in the total tax levied against a given piece of property.