Hamer v. Weber County

Baetch, J.

(dissenting)'.

I do not agree w'ith my brethren in reversing this case. It appears from the findings of fact, which were agreed to by all the parties to the suit, that the plaintiff was the-tax collector, and, as such, on the 18th, 19th, and 20th of December, 1893, offered for sale, at public auction, .certain separate parcels of real estate, for non-payment of territorial, county, and school district taxes for the year 1893. That for 905 of these separate parcels of land there-•were no bidders, and he thereupon made out certificates-of sale to the probate judge of said county, for and in behalf of the county, and afterwards delivered the certificates to defendant Ledwidge, as clerk of the county court, and demanded of said clerk credit for the taxes due and costs to date of sale, amounting to $15,853.57; and the clerk accepted the certificates, but refused to give the credit demanded, the county also refusing to give the same. That the costs of each sale were $7, as folloAvs: £CFor publishing the name and amount of taxes due from each delinquent, together with a description of the property, 50 cents; for filing each certificate of sale with the county recorder, 50 cents; 25 cents per folio for each certificate of sale filed with the county recorder; and 25 cents per folio for each certificate of sale deposited with the county clerk/-’' —the one certificate being a duplicate of the other, and each containing not less than 12 folios, exclusive of the description of the real estate. That no claim for the *17amount represented by these certificates, nor for costs, was ever presented to the county court for allowance. That the county court fixed his salary at $3,000 for the year 1893, with the mutual understanding that, in addition thereto, he should be entitled to all costs and fees allowed him by law,' including those allowed him by law on tax sales and such certificates made to the probate judge. That, prior to the sale of the real estate for taxes, the collector examined the assessment roll, and found that the owners of but 65 out of the 905 parcels sold were also assessed with personal property, and that the collector made no search for personal taxable property of such delinquent taxpayers prior to the sale, nor did he ever seize or levy upon personal taxable property of- the owners of the real estate described in the certificates.

Under this state of facts, the first question raised is whether the 65 tax sales, where the owners of the real estate sold had taxable personal property, are void. The court so held, and counsel for appellant insist that this was error. The statutory provision relating to this question, after providing for the publication of a list of delinquent taxes, reads as follows: “On the third Monday of December of each year, the collector shall expose for sale sufficient of such delinquent's real estate: Provided, that the personal taxable property of such delinquent has been first exhausted by a levy and sale, and for that purpose the tax on the real estate is made a lien on the personal property to pay the taxes and costs/’’ etc. Sess. Laws 1892, p. 29. This is an amendment to section 11 of the act approved March 13, 1890, which is a new section, numbered 2030a, added to section 2030 of the Compiled Laws of Utah of 1888. All of these sections contain similar provisions regarding the application of the personal property to a delinquent’s taxes and costs. From an ex-*18animation of these several sections, it is evident the legislature intended that the personal taxable property of the delinquent should be exhausted before the collector had power to sell the real estate for the payment of his taxes. This is a condition precedent to the sale of the real estate, and the tax on the real estate is made a lien on the personal property for that express purpose. This provision of law is designed for the security of the taxpayer, and is therefore mandatory, and cannot be disregarded by the collector. A collector has but a naked power to sell land •'for taxes. It is not coupled with an interest. His authority is wholly statutory, and is derived from no rule •of the common law. He is simply the agent of the law to sell; otherwise he has no authority, having no interest in the property. As such agent, he must strictly comply .with the conditions imposed by law, or the sale will be void, for he is constituted such agent only by certain preliminary requirements, which must precede his action, and ■are the conditions upon which his authority to effect the sale is founded. If he fails to observe or comply with any one of these preliminary steps, such failure will be fatal .to his action, for his power to sell is founded, not upon one, but upon all, of these requisites.

In the case at bar, the officer attempted to sell the 65 parcels of real estate without first exhausting the personal •taxable property of the several owners. The exhausting .of the personal property being a condition precedent, under our statute, to his power to sell the real estate, and he having failed to observe it, his power to sell never was created, and his action was without authority. Black, in his treatise on the Law of Tax Titles (section 255), states the law as follows: Such a direction is mandatory, and its due observance is strictly a condition precedent to the authority to proceed further. It may therefore be stated *19as a principle generally applicable to those states .[referring to states baying statutes similar to ours] that a title to real estate by virtue of a tax sale, when its owner had personal property subject to sale, within the jurisdiction, and of sufficient value to discharge the tax, but which was not sought out or demanded by the collecting officer, is invalid and worthless.” See, also, Id. §§ 155, 198. Cooley, in his work on Taxation (page 470), says: “It is therefore accepted as an axiom, when tax sales are under consideration, that a fundamental condition to their validity is that there should have been a substantial compliance with the law in all the proceedings of which the sale was the culmination. This would be the general rule in all cases in which a man is to be divested of his freehold by adversary proceedings, but special reasons make it peculiarly applicable to the case of tax sales.” See, also, Id. §§ 342, 472. It is quite clear that the sales under consideration cannot be upheld by authority. 2 Dill. Mun. Corp. § 820; 3 Washb. Real. Prop. p. 234, chap. 3, subd. 12; French v. Edwards, 13 Wall. 506; Houghton Co. v. Auditor General, 41 Mich. 28, 1 N. W. 890; Scofield v. City of Lansing, 17 Mich. 437; O’Byrne v. City of Philadelphia, 93 Pa. St. 225; Seymour v. Peters, 67 Mich. 415, 35 N. W. 62; Wilhelm v. Russell, 8 Neb. 120; Wartensleben v. Haithcock (Ala.), 1 South. 38. It is not necessary to determine in this case whether the county has a lien for the taxes on these parcels of land, thus attempted to be sold by the collector. . It is evident, however, that the sales, being void, passed no lien to the county, and that, if the county has a lien, it has it by virtue of section 2012, Comp. Laws Utah 1888, as amended by the act approved March 13, 1890. Neither the certificates of sale nor any deeds which the county might eventually receive thereunder, could create for or pass to it any lien, because the sales were made without authority *20of law, and therefore conferred no rights which the county can enforce.

It is insisted that the right conferred by section 2030a,. above quoted, is a personal right, and that only the taxpayer can complain. If this be conceded, how can it avail the appellant P The moment the county should attempt to dispose of lands it had acquired through a void sale the-owner would assert his right. In that event the county would stand on the same footing as an individual, and with no better rights by virtue of the sale. Where a person, at a void tax sale, purchases land, the payment of the tax thereon is the same as a voluntary payment, made without the request of the owner; and he has no lien for the money so paid, unless given him by statute, for at common law the rule of caveat emptor applies. The county, having acquired no lien or other rights by virtue of the sales in question, is under no obligation to credit the collector with the costs of void sales. Black, Tax Titles, §§ 463, 464; Cooley, Tax'n, pp. 476, 509, 510; Harper v. Rowe, 53 Cal. 233.

It is further contended by counsel for appellant that it. was lawful for him to charge 25 cents per folio for the duplicate certificate of each of the remaining 840 tax sales, and that the court erred in holding such charge illegal. It is the duty of the collector, when he sells .real estate for taxes to issue a certificate of sale to the purchaser, and file a duplicate of such certificate in the office of the county recorder. When there is no bidder at any sale who. will pay him the amount of the delinquent's tax, he is required to make such certificate to the probate judge, for and in behalf of the county, and then such sale to the county shall have the same effect as if made to an individual. Comp. Laws Utah 1888, § 2031. For these services the legislature has provided fees, as follows: “For each certificate of sale, per folio, twenty-five (25) cents. *21■For publishing tbe name and amount of taxes due from ■each delinquent, fifty (50) cents. For filing certificate for tax sale with the county recorder, fifty (50) cent?.” Sess. Laws 1892, p. 30, § 2030a.

It will be observed that there is no provision here for fees for the making of a duplicate certificate except 50 •cents for filing it with the recorder, and. there is no implied obligation on the part of a county to make compensation to its officers. The right must be expressly conferred by law; and, when a statute creates a liability where none otherwise exists, it will be strictly construed, and the -courts will not aid it in favor of the officer. Nor will they enlarge such liability, or extend it beyond the provisions as expressed in the statute. Nor is the statute ■under consideration at all ambiguous or uncertain in its provisions. It expressly provides a folio fee for “each ■certificate,” and is silent as to the duplicate, except that it provides for filing it. It is clear that the legislature intended that the duty of making the duplicate certificate .should be performed without additional compensation. The collector, having taken upon himself the discharge of the duties of his office, is presumed to have accepted it with a knowledge of the provisions of law relating to it. He therefore assumed the duty of making such duplicate ■certificate, knowing that there was no provision of law which would entitle him to the fees in question. The .statute does not use the plural, but the singular, form of the word certificate,” and the folio fee allowed in each tax sale can apply to but one certificate. Suth. St. Const. § 371; Cooley, Tax'n, p. 266; Rowe v. Kern Co., 72 Cal. 353; 14 Pac. 11; Green v. Holway, 101 Mass. 243; City of Alton v. Aetna Ins. Co., 82 Ill. 45; Boyd v. Hood, 57 Pa. St. 98; Wroughton v. Turtle, 11 Mees. & W. 561. Counsel for appellant has cited the cases of McKinstry v. U. S., 40 Fed. 813; and Clough v. U. S., 47 Fed. 795, in *22support of the proposition that a statute which fixes the compensation of officers should receive a liberal construction. These cases appear to support the proposition, but they have been overruled in U. S. v. Clough, 5 C. C. A. 140, 55 Fed. 373, and are therefore no longer authority on that point. This last c^se supports the rule of strict, construction.

It is further contended that the court erred in deciding that each of the 840 certificates is longer than necessary, and that the costs charged in each case are one dollar in excess of what should have been charged. It appears from the agreed findings of fact that each certificate contains 12 folios of matter, exclusive of the description of the-land. Section 2031, Comp. Laws Utah 1888, provides as follows: “When real estate is sold for taxes, the collector shall issue a certificate to the purchaser, reciting substantially the facts of the non-payment of the tax, levy upon, advertisement and sale of said real estate.” It will be-observed that there are but four facts which shall be substantially recited in the certificate, — the non-payment of tax, the levy, the advertisement, and the sale. The statute provides no form, and the collector is therefore entitled to exercise a reasonable discretion in creating and adopting such a form as will enable him to comply with the statute. This discretion, however, will not permit him to insert unnecessary words and sentences into the form, or to recite facts therein not required by the terms of the-statute, and charge fees for the same. While the collector will not be held to the strictest rules of propriety in the use of language, yet unnecessary repetition should be-avoided, and the form should be reasonably concise. In the case at bar, as appears from the record, the form contains 12. folios, and yet the statute requires the reciting of but four facts in the certificate. An examination of it shows it to be of unreasonable and unnecessary length, *23and an infringement upon the rights of the taxpayer, who> is to pay for the superfluous verbiage at the rate of 25 cents per folio. This is such an abuse of discretion as; will authorize a court to interfere, as unwarranted under the law. Such a padding of the form, apparently for the-purpose of increasing the number of folios, cannot be upheld upon any principle of justice to the taxpayer. Where; the legislature leaves the manner of exercising a power tos the discretion of an officer, it does not mean that he shall exercise such discretion arbitrarily to the injury of any subject. It is clear that, under the agreed statement of facts, the court properly reduced the number of folios to be allowed the collector in each case, and rightfully made a corresponding reduction in the amount claimed, and it seems equally clear that, in justice to the parties concerned,, the amount thus allowed is still excessive. 5 Am. & Eng. Enc. Law, pp. 681, 682; Van Duzee v. U. S., 59 Fed. 440; Olsen v. Bagley (decided at this term) 10 Utah, 492 (37 Pac. 739). The authorities cited by appellant on thi& point do not appear to be applicable to the case at bar,: for here there is a clear abuse of discretion.

Counsel for appellant further contend that it was the duty of the county clerk to credit the collector with his costs on the assessment roll, without previous allowance by the county-court. There are various statutory provisions respecting the duty of the clerk and county court. Section 187, p. 298,. 1 Comp. Laws Utah 1888, provides: “The county courts in their respective counties have jurisdiction and power under-such limitations and restrictions as are prescribed by law.”' And, under subdivision 12 of this section, such courts have power “to examine and audit, at least once a year, the accounts of all officers having (¿ie care, management, collection or disbursement of moneys belonging to the county- or appropriated by law or otherwise for its use and benefit,” and, under subdivision 13, “to examine, settle and *24allow, all accounts legally chargeable against the county and order warrants to be drawn on the county treasurer therefor.” Section 196 provides how claims must be itemized and verified before such court can allow them. Section 197 provides that “no account must be passed upon by the court unless made out as prescribed in the preceding section, and filed by the clerk.” Section 208 reads: “Accounts for county charges of every description must be presented to the county court to be audited as prescribed in this act.” Under these provisions of the law, it would seem that the county court has the exclusive power to pass upon ' all claims of every description, which may be chargeable against the county; but counsel for appellant insist that by a provision of section 2031, ■supra, the county clerk has the right, and that it is his duty, to credit the collector with his costs, and thus pass on his claim without authority from such court.

The provision referred to reads: “And the clerk of the ■county court shall credit the collector with the amount of the tax due thereon, and costs to date of sale.” If the position of counsel be correct, then the collector's claim for costs will become an exception to any other claim against the county. An examination of the various provisions reveals no such intent on the part of the legislature; nor does it reveal any conflict between the several provisions of-law. When these several provisions are read together, they mean simply that the county court shall audit and pass upon the claim of the tax collector for fees and costs, the same as any other claim; and then, when so audited and passed upon, the county clerk shall credit him with the amount allowed by the court. The clerk simply acts under the direction of the court. He cannot act in the capacity of clerk without acting under the orders of his superiors in any matter requiring judgment or discretion, judicial in its nature. There is no *25statute authorizing the clerk to settle with the collector. Nor can the collector determine for himself, without the .action of the court, what his fees and charges shall be, independent of a statute. Nor is it clear under the law, as contended by counsel for appellant, that the claims of the collector, arising because of the collection of delinquent taxes, were intended by the legislature to be a direct charge upon the county tax, to ,be credited to him the same as money, and the money, to the amount of the claim, to be withheld as part of his compensation. The cases which counsel cite to support this proposition do not appear to apply to the case at bar. Most of them are cases arising under statutes which provide that the collector may retain a certain per centum of the tax collected as a commission in lieu of other compensation. Those •cases hold that he may retain his commission out of the tax. In this case, as shown by the agreed statement of facts, the collector was paid a stipulated salary by The county court, which was $3,000, for the year 1893, “with the mutual understanding” between him and the county court that he was entitled, in addition thereto, to certain •costs and fees, including costs and fees for sales and certificates made to the probate judge. Under section 2021, ■Comp. Laws Utah 1888, the county court had the right to fix the collector’s compensation. Whether this “mutual understanding ” is binding on the county it is not necessary to determine; nor is it necessary to determine whether any •of the charges made, pursuant to such “ understanding,” for the 840 certificates of sale issued to the probate judge constitute a valid claim, or what effect the illegal fees charged by the collector in each one of the 840 sales would have upon the rights of the county, should it at any time attempt to dispose of the real estate under the certificates of sale made to the probate judge, because both the *26“mutual understanding” and the certificates are treated as binding and valid in tbe agreed findings of fact.

The question is, can the collector, receiving a fixed salary, withhold any money, which he receives in his official capacity, from the county treasurer, in payment of claims due him from the county? Section 2036, Comp. Laws Utah 1888, so far as material here, reads as follows: The clerk of the county court in each county shall keep an account with the collector, debiting him with the amount of tax assessed and crediting him with the amounts paid; and the collector is hereby required to pay to the county treasurer, once a month, or oftener if required by the county court, all county funds collected by him, and shall take the treasurer’s receipt therefor, specifying the amounts paid in kind.” This is a clear statement of the duties of the collector, and leaves no room for doubt. Under its provisions, the collector must pay, not only a part, but “all, the funds collected” to the treasurer, once a month, or oftener if required by the court; and he has no right to any offset, not even though his claim or demand be for unpaid salary. Having collected the money, it is his duty to pay it over promptly, as provided by law; and he has no right to pause and question the right of the county to receive it before paying a demand due to himself. Nor has he a right to withhold any portion of it, as compensation in addition to his stipulated salary, in the absence of a statute expressly giving such right.

Cooley, in his work on taxation (page 704), thus states the law: “It has been seen that the law sometimes provides very summary proceedings for the enforcement of the duty to pay taxes, and that the legislative competency to do so has been very fully sustained. With much greater reason may the law provide summary remedies against those who, having accepted official positions under the revenue *27laws, neglect or refuse to perform tbe duties which pertain to them, or endeavor to substitute a performance of their own for something of a different nature which the law has required. This is particularly true of tax collectors. They have only to collect money, and pay it over to the proper custodian; and it is seldom that a question arises which can justify departure from the strict terms of their authority, or neglect in the prompt payment of what comes to their hands.” See, also, Id. pp. 705, 706. In City of New Orleans v. Finnerty, 21 Am. Rep. 569, the court said: “No officer of a government, state or municipal, is empowered to pay himself his salary, or plead in compensation a demand made against him for moneys collected by him in his official' capacity, by an amount due him on account of his salary. His duty is to ‘discharge the obligations of. his office according to the terms of his acceptance thereof, and to get his pay as other officers get theirs. In other words, he cannot pay himself.” Mechem, Pub. Off. § 873; Dill. Mun. Corp. § 230; San Francisco v. Ford, 52 Cal. 198; Evans v. City of Trenton, 24 N. J. Law, 764; Hatch v. City of Cincinnati, 17 Ohio St. 48; People v. Supervisors of New York, 1 Hill, 362; Griffin v. Clay County, 63 Iowa, 413, 19 N. W. 327; Sikes v. Hatfield, 13 Gray, 347; White v. Levant, 78 Me. 568, 7 Atl. 539; Haswell v. Mayor, etc., 81 N. Y. 255. I am of the opinion that in the case at bar it was the duty of the appellant to pay over all the money which he collected, and then present his claims to the county court for allowance, the same as any other officer or claimant. Hnder the findings of fact, which were agreed to by all the parties to this action, I see no reason for disturbing the judgment of the trial court.