Telonis v. Staley

Plaintiff appealed from a judgment of the district court of Carbon county quieting defendants' title to the surface rights of certain coal mining property. We affirmed the judgment of the district court in an opinion and decision reported in106 P.2d 163, 104 Utah 505. For reasons deemed adequate by the court, appellant's petition for rehearing was granted, and the case was reargued and reconsidered by the court.

In 1932 the Union Pacific Coal Company was the owner of record of property in Carbon County involved in this action. The State Tax Commission in that year assessed the values of the real estate, separately evaluating the surface rights and the mineral rights, and certified the same to Carbon County. These values were spread upon the county tax records. The company failed to pay the taxes, and after advertisement for delinquency the property on January 10, 1933, was sold for taxes to Carbon County. Record of the sales was noted in the Treasurer's office and a tax sale certificate for each tract was filed with the County Recorder. No redemption was made, and on January 12, 1937, the County Auditor issued auditor's tax deeds to the county. The property was advertised and offered for sale at the May sale, but there were no bidders. On June 18, 1937, at private sale for a consideration of $2,000, the county sold and conveyed to defendants Staley and Sillitoe, the surface rights to the property. In December, 1937, Staley and Sillitoe mortgaged the surface rights to defendant Carbon-Emery Bank for $4,000. On January 11, 1938, Union Pacific Coal Company, for a consideration of $200, quitclaimed the *Page 541 real estate to plaintiff, who on February 2, 1938, commenced this action by filing a complaint in the simplest form to quiet his title. By both answer and counter-claim defendants asserted title in Staley and Sillitoe by virtue of the tax sale proceedings above noted.

The questions presented for reconsideration are as follows:

1. Are mineral rights and surface rights required to be separately taxed and sold when ownership of both reside in the same person?

2. May a tax sale certificate which does not show the year for which the property was sold for taxes nevertheless be admitted in evidence as a prima facie showing that necessary steps leading to the sale had been taken?

3. Did the failure of the County Auditor to authenticate the assessment roll with his affidavit as required by statute invalidate the assessment and sale for taxes?

We consider these questions in the order set forth.

1. In this case, Union Pacific Coal Company, grantor of plaintiff, owned both the surface and mineral rights in the land used for mining purposes. It made no request that the surface be taxed on its valuation separately from the mines and mineral rights. Owing to the common ownership and 1 failure of the owner to request separate taxation, it was proper for the county officials to aggregate the valuations of both surface and mineral rights in applying the tax levy and in all proceedings subsequent thereto. Section 5864, C.L. Utah, 1917, as amended by Chap. 53, Laws of Utah 1931, and as embodied in Sec. 80-5-56, R.S.U. 1933, which relates to assessment of mines and mining properties, provides in part:

"* * * In all cases where the surface of lands is owned by one person and the mineral underlying such land is owned by another, such property rights shall be separately assessed to the respective owners." *Page 542

Where the surface and underlying mineral of a claim or land are owned by the same person as shown by the records, they may be advertised and sold as one even though assessed separately. The reason for this is that where the surface property has adaptability for uses other than mining purposes 2 and is actually used for such other purpose, is has an additional assessable value which should be shown in the same manner as improvements are required to be shown in the assessment. Barnard Realty Co. v. Butte, 50 Mont. 159,145 P. 946. But there is no requirement of the statute that the rights separately assessed should be separately advertised and sold. Nor is such the reasonable implication of Sec. 80-5-56, R.S.U. 1933, which merely requires assessment to the respective owners when the surface is owned by one person and the underlying mineral to another. Where there is separate ownership of the respective rights, separate levy and separate sale would necessarily follow; but where the rights are all owned by the same person the statute does not contemplate that, nor has any reason been shown why, the rights should be separately sold.

Utah Copper Co. v. Chandler, 45 Utah 85, 142 P. 1119, andUtah Copper Co. v. Eckman, 47 Utah 165, 152 P. 178, cited by the appellant, do not require a contrary conclusion. In each of these cases, the surface rights were occupied and used by the defendant and were assessed to him. The question raised was whether the defendant had by adverse possession (including the payment of taxes) acquired title thereto. While the apparent implication of these cases is that a separate estate in the surface rights was created by occupancy and use, thus justifying assessment to the claimant, we are not called upon to examine into the validity of such holding, since, though it be valid, it does not follow that where such rights are unquestionably owned by the same person they are to be regarded as separate estates for purposes of tax levy and sale. *Page 543

2. The form of the certificate of sale is governed by Sec. 6021, Chap. 139, Laws of Utah 1921 (as modified it became 80-10-35, R.S.U. 1933), which specifies:

"The certificate of sale shall be substantially in the form hereinafter provided,"

and the form recites a sale of the property by the treasurer for the

"delinquent state, state school, state high school, county, city, city school, ___________ and district school taxes, for which said property is liable, assessed in the name of ____________ as owner for the year ________, together with the penalty provided by law and the costs of sale; that a description of the property sold is as follows, to wit: . . . . . . . . . . ."

If the certificate were "substantially in the form hereinafter provided" the words "city, city school" would have to be deleted if the property were outside the limits of any city or town. The Legislature specified a form which would have to be modified as far as including the words "city, city 3 school," if the property were not within any city or town. To be substantially in the form specified in the statute, the certificate would have to show the year in which the taxes were levied and for which year the sale was made.

Immediately following the form of the certificate in Sec. 6021, Chap. 139, Laws of Utah 1921 (Chap. 95, Laws of Utah 1915), appears the following:

"The certificate of sale herein provided for, when signed by the county treasurer and delivered to the purchaser, shall be prima facie evidence of the regularity of all proceedings connected with the assessment notice, equalization, levies, advertisement, and sale of the property therein described, and the burden of showing any irregularity in any of the proceedings, resulting in the sale of property for the nonpayment of delinquent taxes, shall be on him who asserts it. * * *" (Italics added.)

When the foregoing provisions were incorporated into Revised Statutes of Utah, 1933, as part of Section 80-10-35, *Page 544 the italicized words "herein provided for" were deleted and the word "when" and the phrase "and delivered to the purchaser" were also deleted; and between the words "assessment" and "notice" a comma was inserted to read, "assessment, notice." Chapter 101, Laws of Utah 1939, Section 80-10-35, R.S.U. 1933, was amended so that no certificates of sale are issuable in tax sale proceedings conducted after September 1, 1939. The amended section now reads as follows:

"A copy of the record of any tax sale duly certified by the official custodian of such record at the time of the certificate under the seal of his office as a true copy of the entry in the official record showing such sale is prima facie evidence of thefacts therein shown, and the regularity of all proceedings connected with the assessment, valuation, notice, equalization, levies, tax notices, advertisement and sale of the property therein described, and the burden of showing any irregularity in any of the proceedings resulting in the sale of property for the nonpayment of delinquent taxes shall be on him who asserts it." (Italics added.)

The words italicized were inserted in the 1939 amendment. Although the 1921 statute does not by literal construction make the tax sale certificate prima facie evidence of the regularity of all proceedings connected with the assessment or the issuance of the tax notices, and while the statute as 4-5 modified in Section 80-10-35, R.S.U. 1933, does not mention "tax notices," it is reasonably clear that the purpose of these statutory provisions is to make a tax sale certificate which is executed in conformity with the requirements of the statutes, prima facie evidence of the regularity of all proceedings leading up to the issuance thereof. The certificate of sale must properly describe the property and the taxes (by naming the year for which levied) for the non-payment of which the sale took place, before it can be used as evidence of the regularity of such prior steps and proceedings. Brink v.Dann, 33 S.D. 81, 144 N.W. 734, 738.

Any certificate duly authenticated by an officer authorized to issue the same is generally admissible in evidence *Page 545 as the certificate issued by such officer. Whether or not such certificate may be used as evidence of the acts of such officer or of other officers which occurred prior to 6, 7 issuance of such certificate, depends upon the language of the statute which authorizes its use as evidence. Sec. 80-10-35, R.S.U. 1933, authorizes the use of a tax sale certificate as prima facie evidence of the regularity of all proceedings leading up to its issuance only if in substance and content the certificate conforms with the requirements of such statute. It is not admissible as prima facie evidence of those prior proceedings if it is incomplete or otherwise wanting in essential recitals or averments.

An inadequate and ambiguous description of the property contained in the tax sale certificate as found in Burton v.Hoover, 93 Utah 498, 74 P.2d 652, or a failure to properly designate the tax and the year in which levied as in this case, constitutes such failure to conform with the 8 requirements of the aforesaid statute as to deny the use of such certificate as prima facie evidence of the regularity of any of the prior proceedings. In this case, because of incompleteness and lack of conformity with the requirements of the statute under which they were offered, the tax sale certificates were improperly admitted as proof of the regularity and validity of the steps leading up to the issuance of such certificates.

3. Plaintiff introduced the assessment rolls and other evidence for the purpose of showing that the auditor's affidavits were not attached to the assessment rolls as required by the statutes, C.L. 1917, Sec. 5982 and 6006, and R.S.U. 1933, Sec. 80-7-9 and 80-8-7. Plaintiff contends that the assessment rolls were not authenticated and that the affidavits were necessary to show that the corrections had been officially made and to serve as a warrant to the treasurer to proceed to collect the taxes as shown on the corrected assessment rolls or tax rolls. Respondents cite Sec. 5910, C.L. Utah 1917, R.S.U. 1933, Sec. 80-5-30, which requires the assessor to complete his *Page 546 assessment book on or before the first Monday of May in each year and to deliver the same to the county treasurer. He is required to subscribe to an affidavit in the form set forth in the statute. After stating that the assessor shall not be paid or draw any compensation for services after the first Monday in May of each year until said affidavit is made and subscribed, the concluding sentence of said section specifies:

"A failure to make or subscribe such affidavit, or any affidavit, will not in any manner affect the validity of the assessment.

The same provision appears in Sec. 2547, C.L. Utah 1907, and Sec. 2547, R.S.U. 1898. It does not appear to refer to any officer except the assessor.

Appellant concedes that the failure of the assessor to attach his affidavit is not a fatal defect because of the above-quoted statutory provision; but he contends that because there is no curative provision in the statutes for failure of the auditor to verify the correctness of the assessment roll, such defect is a fatal omission.

When the assessor completes his work, the assessment roll is still subject to correction and modification by the county board of equalization, and by the State Tax Commission. The taxpayer is not yet bound by any valuations or computations, so that the assessor's affidavit does not purpost to 9, 10 certify that the assessment roll is in final form. After the board of equalization has completed its changes and corrections, which the auditor is required to enter, and after the auditor has made such changes, if any, ordered by the State Tax Commission, the assessment roll then becomes the final and completed tax roll if the auditor has performed his work pursuant to law.

When the auditor finally delivers the assessment roll to the treasurer, it is required to be correct and complete, and Sec. 80-8-7, R.S.U. 1933 (Sec. 6006, C.L.U. 1917), requires the assessment roll as corrected to be verified by the auditor. The auditor must declare under oath that he 11 has corrected it and has made it conform to the *Page 547 requirements of the county board of equalization and the State Tax Commission, and that the respective sums due as taxes have been computed and that he has added up the column of valuations, taxes, and acreage as required by law. See Sec. 2606, R.S.U. 1898, and C.L.U. 1907. When the assessment roll is thus delivered to the treasurer with the final auditor's affidavit of authentication, the auditor certifies the same as the tax roll to the treasurer and to the public that the assessment roll as the official tax roll is complete and correct. The aforesaid affidavit is one of the statutory functions of the county auditor, and such affidavit must be executed and properly attached. The property owner is entitled to rely on such verification and the treasurer is bound thereby and he is required to proceed to issue the tax notices in accordance therewith, and to collect the taxes based on the computations of the auditor. The final affidavit of the auditor thus becomes highly important, and in the absence of any curative provision in the statutes for failure of the auditor to subscribe to and attach such certificate of authentication in affidavit form, the requirement of the statute must be observed.

Sections 80-7-1, 2, 3, 4, 5, 6, 9 and 80-8-1, 3, 4, 5, 6, 7, 8, 9, 10, R.S.U. 1933, are substantially the same as Sections 3672, 3673, 3674, 3675, 3676, 3677, 3682 and 3727, 3728, 3729, 3730, 3731, 3732, 3734, 3735 and 3736, of Deerings Political Code of California 1915. In Miller v. Kern County, 137 Cal. 516,70 P. 549, 552, the Supreme Court of California distinguished between the effect of failure of the assessor to attach his affidavit and the failure of the auditor to attach his affidavit as required by statute:

"* * * The section, however, provides that `the failure to take or subscribe such an affidavit, or any affidavit, will not in any manner affect the validity of the assessment.' No such provision is found in the sections already noticed [relating to the clerk and auditor], and the implication is strong that the legislature intended to make the requirements of those sections an essential part of the assessment book as finally completed, and as delivered to the tax collector. It is not reasonable to suppose that the legislature intended that the assessment *Page 548 book should be placed in the hands of the tax collector without any authentication whatever. * * * It may be that the clerk made the affidavit after he had delivered the assessment book to the auditor, the same or the next day; and it may be the auditor made the affidavit required of him after he delivered the assessment book to the tax collector. Possibly the defendant can show a sufficient compliance with the law in these particulars. * * *"

In the second appeal of said case, 150 Cal. 797, 90 P. 119, the court called attention to the fact that the auditor's affidavit was executed, but it was executed subsequent to the date when it should have been delivered. The court held that the making and attaching of the affidavits to the assessment book is for the purpose of authentication, but the mere failure to attach such affidavits within the time specified does not invalidate the assessment book. The court cited a statute which is identical in wording with Section 80-11-7, R.S.U. 1933, C.L. Utah 1917, Section 6087, C.L. Utah 1907, Sec. 2677, R.S.U. 1898, Sec. 2677. In Moyer v. Wilson, 166 Cal. 261, 135 P. 1125, the court declared that no authority was presented to justify overthrowing its decision in Miller v. Kern County, supra; that the annexing of the affidavit by the county auditor is essential to the validity of proceedings to enforce payment of the tax. InBrady v. Davis, 168 Cal. 259, 142 P. 45, 46, the court held that the mere fact that the auditor actually did the things required to be done to the assessment book was immaterial if he failed to attach the required affidavit. On the authority ofMoyer v. Wilson, supra, the court declared:

The actual annexing of the affidavit is essential to the validity of the proceedings, and such annexing must be made at least prior to the making of the sale to the state."

The California court applied the same rule of construction to special taxes under municipal ordinances, in Leonard v.Jaffray, 175 Cal. 371, 165 P. 956, 957, declaring:

"* * * Neither the prima facie evidence of the regularity of the antecedent proceedings furnished by the deed to the city nor the curative *Page 549 clause of the ordinance relating to informalities is available against the clear showing that the clerk failed to authenticate the corrected roll as required by the ordinance. * * *"

In this case appellant also contends that the first auditor's affidavit, required by Sec. 80-7-9 to be attached to the corrected assessment roll was never annexed thereto nor ever executed. Respondents contend that it is merely for the benefit of the treasurer and not the taxpayer. We think the purpose of the original authentication is at least in part for the benefit of the taxpayer. The affidavit reads:

"I, ______________, do swear that, as county auditor of ____________ county, I have kept correct minutes of all acts of the county board of equalization touching alterations in the assessment book, that all alterations agreed to or directed to be made have been made and entered in the book, and that no changes or alterations have been made therein except those authorized."

By Section 80-7-8 the auditor is made ex officio the clerk of the Board of Equalization. The taxpayer is the one who is entitled to the assurance that the clerk of the board has made all the alterations in the assessment ordered to be made by the board and no others. One purpose for which 12 the book in which such changes, corrections and orders are required by Sec. 80-7-9 to be kept is to enable the taxpayer to have means of information of what has been done by the Board of Equalization. Thus, both the first and second affidavits of the auditor were designed to give assurance that the entries in the assessment book are correct and authentic. Moreover, the statutes expressly require that the affidavits of authentication be made. Failure to execute and attach such affidavits certainly is not a mere "informality" within the meaning of Sec. 80-11-7, R.S.U. 1933. The Legislature evidently thought that the affidavits are of sufficient importance to insert a special provision in the statutes, Sec. 80-5-30, in order that the failure of the assessor to attach his affidavit would not invalidate the assessment. *Page 550

Respondents further contend that the auditor cannot be required to execute the final affidavit provided by Sec. 80-8-7 for the reason that he would actually commit perjury by swearing that he received the assessment roll from the assessor when it actually is delivered to him by the treasurer. 13 The assessor delivers the assessment books to the auditor via the treasurer, who prior to their delivery to the auditor to make the final corrections and to compute the taxes, issues valuation notices and other records. It might be preferable from the standpoint of precision and detail for the auditor to state that he received the assessment rolls from the assessor by way of the treasurer. However, we are unable to see how the failure of the statute to require the auditor to recite all of the details of manual delivery of the assessment rolls prepared by the assessor, could operate to excuse the auditor from authenticating the assessment rolls and verifying their correctness and completeness.

It is pointed out by respondents, however, that the trial court made a finding to the effect that the auditor's affidavit was attached to the roll at the time is was delivered to the treasurer, and they contend that such finding has ample support in the evidence. The reasoning for such 14 contention is as follows: The certificate of tax sale being prima facie proof of the regularity of all proceedings leading up to its issuance, appellant had the burden of showing that the affidavit was not attached at the time the roll was delivered to the treasurer. The only evidence which might tend to so show was that introduced by the appellant to the effect that at the time of trial no such affidavit was attached; and that such evidence is insufficient to show that it had not theretofore been affixed to the roll. Since we hold that the tax sale certificates introduced were not such as to make them prima facie evidence, and the burden of showing the regularity of the proceedings leading to their issuance remained with respondents, the argument loses all of its force. Respondent *Page 551 failed to produce evidence that the affidavit was ever attached. The evidence showing that it was not affixed at the time of trial is certainly not such as to justify an inference that it was affixed at some earlier date.

From what has been said above it is apparent that the defendants did not establish a good title from the county. A number of other questions were raised by the parties but we deem it unnecessary to consider them because we believe the answer to the three questions above will control not only in this appeal but in the determination of a retrial. If by any chance on retrial the defendants can furnish evidence that the auditor's affidavit was affixed to the assessment book, other questions may arise. In such case, it will be better to permit the trial court to rule upon them and for us to pass upon them on another appeal if necessary instead of considering them now on the bare possibility that they may again arise in this case.

The judgment of the court is reversed and the cause is remanded, with instructions to grant a new trial. It is so ordered. Costs to appellant.

WOLFE, C.J., and MOFFAT, J., concur.