On Motion for Rehearing.
PARKER, J.By motion for rehearing, learned counsel for appellee suggests that the court was in error in holding that the taxes for 1904 were merged by judgment and that chapter 65, Laws 1907, therefore did not apply.
[5] Counsel states that in contemplation of law all taxes prior to 1906 had been merged in judgments prior to. the passage of chapter 65, Laws 1907, so that if the construction placed by the court upon that chapter be correct there could be no room for the operation of the statute, except possibly for the first half of the taxes for 1906. Our attention is called also to section 2 of the act which provided substantially that “all delinquent taxes” for the years 1901 to 1905, inclusive, should be distributed in a certain manner. Counsel contends that a clear legislative intent is disclosed to permit of a payment of taxes, without penalty and interest, whether the amount of such taxes be included in a judgment or not, and on further consideration of the matter we are satisfied that counsel is correct in the contention made.
In the former opinion we did not consider the sufficiency of the tender because it was rendered immaterial by the decision respecting the applicability of chapter 65, Laws 1907, to taxes which had been placed in judgment.
Counsel for appellant argued that the tender of June 27, 1907, was insufficient because it did not include any sum imposed as costs. The tender was for $49.59, the exact amount of taxes levied on the property for 1904. The rolls for that year showed the imposition of a penalty of $2.48 on account of the failure to pay the taxes when due, and section 10, c. 22, Laws 1899, the law in force at the time, required the taxing authorities to impose that penalty. That sum was, however, remitted by chapter 65, Laws 1907, when its provisions were invoked. The additional sum of $2.75, described as costs of advertising, was charged on the rolls against said property for said year. The appellant contends that because the tender did not include that sum it was bad.
The statute, chapter 65, Laws 1907, provided for the remission of all “accrued penalties and interest,” and the question now is whether it was necessary to pay or tender the amount charged as advertising costs in order to be relieved under the provisions of the act.
Under the law of 1899, if taxes were not paid within 90 days after delinquency, it became the duty of the collector to publish a delinquent tax list of owners of property upon which the taxes amounted to not less than $25; the list to state the “amount of taxes, penalties and costs due.” The collector was required to append to the list and publish a notice that he would in a time stated apply for judgment against the lands and personal property described in the list, “with costs and penalties” and for an order óf sale, and sell said property against which judgment may be rendered for the taxes, penalties, and costs due. Upon the completion of the publication and notice, the district attorney was required to file an omnibus suit against the property described in the publication, and where judgment was rendered it was to include the amount stated in the publication, “together with penalties, interests and costs,” and in entering up such judgments the clerk was required to add to the judgment amount a sum equal to 5 per cent, of the amount due, “which five per centum shall be the costs of such proceeding” to be paid over to the court fund of the county. Sections 15, 17, 18, and 20, c, 22, Laws 1899.
It will be observed that the law required the imposition of costs of publication of the delinquent tax list and also the cost of the omnibus suit brought to enforce payment of the tax. The statute fixes the amount of the costs’of suit, but does not fix the publication costs.
It therefore appears that the cost of publication of the delinquent tax list became a charge against the property in suit here, unless the statute authorized its remission upon payment of the taxes proper the tender was insufficient.
The word “penalty,” as used in the staute, clearly speaks to the arbitrary amount to be added to the tax proper imposed by section 10, c. 22, Laws 1899, as a punishment for failure to pay the tax within the time specified by the statute. This amount is added to. the tax and becomes a constituent part of it. Our conclusion with respect to these matters requires no consideration as, to the usual meaning attributed to the word penalty.
The word “interest” in the statute was evidently used inadvertently. Prior to 1899, 25 per cent, per annum was added as interest to delinquent taxes. Section 4066, C. L. 1897. So far as we have been able to ascertain,, from 1899 to 1918 taxes did not draw interest, although we find the- word “interest” appearing in the act, of 189.9 at several places.
It is elemental that “a tender t.o be sufficient in law must be in amount at least equal to the amount due.” 26 R. C. L. “Tender,” § 20.‘
Under chapter 65, Laws 1907, a tender of the delinquent tax amount, including the legally assessed cost of publishing the delinquent tax list, must be made in order to entitle the party to a remission of the penalty imposed for the nonpayment of taxes, and a tender of an amount less- than that required by law is unavailing.
The judgment of the trial court is therefore reversed, and the cause remanded, with instructions to set aside the judgment and thereafter proceed as the parties shall elect, and,
It is so ordered.
ROBERTS, C. J., and RAYNOLDS, J., concur.